Sutriyah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 375/2024

[2026] HKCFI 3036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 375 of 2024

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 be amended on the court’s own motion.

2.  No extension of time be granted to the applicant to file the Leave Application out of time.

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

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 February 2024, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 15 February 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 24 November 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000375_2024_files/the_Board's_Decision.pdf

2.The applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by the loan shark for an unpaid loan borrowed by her husband who had since disappeared. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.The applicant has requested for an oral hearing. On 13 February 2026, the applicant filed an affirmation for the withdrawal of the Leave Application. On 6 March 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department separately faxed a letter to the court, informing the court that the applicant would like to withdraw her judicial review application. Enclosed with the said letter was the applicant’s signed memo in her native language as well as in English dated 27 February 2026. In the memo, the applicant stated that she would like to withdraw the Leave Application as the issues in her home country had been resolved. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation contained no such grounds.

6.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[4] In the present case, the Board found that the applicant’s account regarding threats from the husband’s creditor incredible. Hence, the Board found that the applicant would not be subjected to risk of harm if refouled. It also found that the past ill-treatment failed to meet the requisite level of severity. It further found that state protection and internal relocation were both reasonably available. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant provided no grounds at all in support of the Leave Application. Hence, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].

8.Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The applicant was late for about 9 months, which is lengthy. The applicant has not provided any reason for the substantial delay. In the circumstances, I’d be disinclined to grant leave for extension of time.

Withdrawal application

9.Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

10.The Form 86 be amended on the court’s own motion.

11.No extension of time be granted to the applicant to file the Leave Application out of time.

12.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 5^th day of June 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