Umul-ma ’rifah v. Torture Claims Appeal Board
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HCAL 1580/2025 [2026] HKCFI 3359 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1580 of 2025
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 K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 2 October 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 2 January 2025. Her application was filed on 10 July 2025, which is late for 6 months and 8 days. This issue will be dealt with below. 2.The applicant did not request an oral hearing. The applicant 3.The applicant is a national of Indonesia. She is an illegal immigrant. She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her creditor and her husband because she was unable to repay her loan. Details of her story are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001580_2025_files/the_Board's_Decision.pdf The Director’s Decision 4.The Director considered the applicant’s claim in relation to the following risks:
5.By way of Notice of Decision dated 24 January 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated. The Board’s Decision 6.The applicant appealed the Director’s Decision to the Board. On 29 April 2024, the Board conducted an oral hearing. The applicant had given oral evidence and answered the Board’s questions. 7.Having considered the applicant’s evidence, the Board made the findings below.
8.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision. Application for leave to apply for judicial review of the Board’s Decision 9.The applicant has filed Form 86 dated 10 July 2025 for leave to apply for judicial review of the Board’s Decision. 10.In support of her application, the applicant did not explain why she was late. She had only attached a copy of the Board’s Decision to her affirmation. DISCUSSION 11.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider, inter alia, the prospect of the intended appeal. I shall consider the merits of the applicant’s case. 12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. From the Board’s Decision, there seems to be no finding of the facts of the claim, as required by the Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, para. 30; and M v Torture Claims Appeal Board; and Director of Immigration [2021] HKCA 1523:
14.However, the facts can be discerned from the analysis of the evidence by the Board as demonstrated in paragraph 7(1) & (2), supra. 15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
16.There is no reason from the applicant to challenge the Board’s Decision. The applicant has not given any explanation for her delay. For this reason, the Court should not extend time for her application. 17.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision. DISPOSITION 18.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application. Dated the 10th 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 [1]. Delay in applying for relief (O. 53, r. 4) (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988) (2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment