Uun Kurniyah Bt Warna Rasba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1529/2022

[2026] HKCFI 2277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1529 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau:

1.   Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party and stating that the decision in respect of which relief is sought is the decision by the Torture Claims Appeal Board dated 15 December 2021.

2.   The Applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 19 December 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 15 December 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 27 May 2021 (the “DOI Decision”).

2.The Applicant requested for a hearing of this application.  She was absent from the hearing.  I see no irregularity in the notification of her attendance.

3.In the Form 86, the Applicant sought leave for judicial review against decisions dated “27-2021/15 December 2021”, which appear to be the DOI Decision and the TCAB Decision.  The DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]).

4.Thus, I amend the Form 86 on my own motion to state that the decision in respect of which relief is sought is only the TCAB Decision.  I further amend the Form 86 on my own motion to name the DOI as the putative interested party.

Background

5.The Applicant is a national of Indonesia.  In gist, she fears that she will be harmed or killed by a loan shark if she were to be refouled.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Legal Principles

6.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay [[2]] (iii) the merits of the substantive application [[3]] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See Thing Sunil v TCAB [2025] HKCFI 4366, at [9] citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 36], Thomas Lai [2014] 6 HKC 1 at [43 to 45] as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at [17-22, 36-44] citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

10.The Application was out of time for around 9 months.

11.Having considered the matters below, applying the well-known principles stated above, I decline the request to extend time.

12.First, I note that the Applicant has not explained the delay at all.

13.Secondly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and I would have dismissed the present application even if it had been brought within time.

14.The Applicant’s Form 86 did not set out any purported grounds on which relief is sought.  However, a submission in support of this application was filed on 4 March 2026.  I note that the submission was filed on the same date as the hearing, from which she was absent.  Nonetheless, I fully consider the said submission.

15.The 12 grounds in the submission are either vague or generic, or concern factual matters which have either been fully considered by the TCAB or are irrelevant.  In reality, they did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

16.The Applicant’s grounds of appeal, are in gist, general accusations that:

a.   The TCAB failed to give proper importance or weight to the Applicant’s personal background and experience.

b.   The TCAB placed too much reliance on the country of origin Information (the “COI”) (ground 7) and web news that were not recognised by authorities (ground 12).

c.   The TCAB was generally unreasonable and irrational in coming to its conclusion.

17.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [31-39, 45-48, 52-56, 59-60, 62-65].  In particular, the TCAB found that there were a number of significant inconsistencies between her written and oral evidence that would not have occurred if she were telling the truth [31-32].  For example, in the NCF, she stated that the loan shark came to her home and made threats seven times altogether, before she and her husband decided to go into hiding, but told the TCAB that they came between two and four times a month over a period of six or eight months [32].  Further, the TCAB found her to be contradictory and evasive in her evidence on the written loan agreement.  In particular, her evidence changed from her stating without hesitation that there was a loan agreement with her name on it, to saying that she was asked by her husband to sign a letter to which she did not know the content of.  After contradicting herself several times, she finally said that did not know whether there was a written agreement [35].  Moreover, the TCAB was not satisfied that she would not be able to relocate as her husband had been able to successfully relocate and avoid harm from the loan shark [38-39].  Taking into consideration of all material evidence, her application was bound to fail.

18.There is also a clear mismatch between the purported grounds the Applicant raised and the actual findings of the TCAB.  The TCAB’s ruling has given considerable focus on the Applicant’s personal circumstances, and did not primarily rely on COI or web news.

19.In reality, the Applicant’s evidence was simply insufficient to support her case, and none of the grounds, in truth, challenges the TCAB’s findings in any meaningful ways, particularly in respect of her credibility.

20.Third, an extension of time for an unmeritorious application such as the present one, coupled with substantial delay, would result in further undue delay, prove prejudicial, and undermine the orderly conduct and progress of the refoulement process.

21.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly no extension of time is granted and the application for leave to apply for judicial review is dismissed.

Dated the 28^th day of April 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1