Susmiyati and Another v. Torture Claims Appeal Board
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HCAL 92/2022 [2026] HKCFI 4397 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 92 OF 2022
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicants: The Leave Application 1.By way of Form 86 dated and filed on 26 January 2022, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 November 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board’s Decision was in respect of the applicants’ late filing of their Notice of Appeal/Petition (“NOAP”) against the decision of the Director of Immigration (“the Director”) dated 7 December 2017 (“the Director’s Decision”), which refused the applicants’ application to re-open their non-refoulement claims that were deemed withdrawn on 24 August 2017 due to their failure to return the completed Non-refoulement Claim Form (“NCF”) as required (see sections 37Y and 37ZG(1) of the Immigration Ordinance, Cap 115 (“the Ordinance”)). 3.The Board found no information to suggest that it was due to circumstances beyond the applicants’ control that they had failed to file their NCF, and there was no valid circumstances to justify the exercise of the Board’s power (in lieu of the Director’s) under section 37ZG(3) of the Ordinance, to allow the applicants to re-open their non-refoulement claims. 4.The Board also found no justifiable explanation for the applicants’ undue delay of 3 years and 5 months out of time in filing their NOAP. 5.There was also no relevant matters of facts within the knowledge of the Board or special circumstances which made it unjust not to allow the late filing of their NOAP under section 37ZT(3) of the Ordinance. 6.Thus, the Board refused to grant extension of time to the applicants to file their NOAP out of time. Amendments 7.In Form 86, the applicants’ names were not stated properly. Thus, on this court’s own motion, “Susmiyati” is named as the 1st applicant. The other applicant, Susmiyati Nayaab Bibi, who is the 1st applicant’s daughter and a minor, is named the 2nd applicant. The 2nd applicant is represented by the 1st applicant as her next friend and her name is amended to “Susmiyati Nayaab Bibi (a minor) by Susmiyati, her next friend” on this court’s own motion. 8.The applicants named “Torture Claims Appeal Board non-ReFolument Claims Petition OFFice” as the putative respondent and “TO Claims appeal Board non-ReFulement Claims Petition OFFice” as the putative interested party in Form 86. 9.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 10.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all. 11.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”. Legal representation of the 2nd applicant 12.The 2nd applicant is a minor born on 17 February 2016 and is represented by the 1st applicant in the Leave Application. 13.This court sent a letter dated 8 April 2026 to the 1st applicant to remind her that the 2nd applicant must be represented under Order 80 rule 2 of the Rules of the High Court. She was advised to approach the Legal Aid Department or a private lawyer to represent her in the capacity as the next friend of the 2nd applicant. She was also reminded that the Leave Application would be adjourned for 3 months for her to make the necessary arrangement, and in the event that she failed to arrange any legal representation, this court would proceed to deal with the Leave Application and treat the non-compliance of Order 80 rule 2 as an irregularity if so satisfied. 14.The 1st applicant did not respond to the said letter from this court and both applicants were absent at the oral hearing before this court on 16 July 2026. 15.The 2nd applicant had the assistance of the Duty Lawyer Scheme (“the DLS”) in the handling of her non-refoulement claim before the Director. 16.Moreover, in handling the applicant’s late filing of appeal/petition, the Board was aware that the 2nd applicant was a minor, and thus had written to the DLS for possible legal representation for the 2nd applicant. However, the DLS had not been able to reach either applicant for instruction since the matter was referred to the DLS in June 2021 until the Board made its decision on 11 November 2021. 17.This court is satisfied that ample time and opportunity had been given to the applicants to seek legal representation. Together with the fact that the applicants were absent at the oral hearing on 16 July 2026, this court considered that the lack of legal representation for the 2nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application. The applicants’ case 18.It is unnecessary and indeed impossible to discuss the details of the applicants’ non-refoulement claim here as the applicants did not provide their completed NCF in accordance with section 37Y of the Ordinance. Their claim was deemed withdrawn on 24 August 2017 pursuant to section 37ZG(1) of the Ordinance due to their failure to provide their completed NCF to the Director. Thus, there was no assessment of the applicant’s non-refoulement claim by the Director. 19.In any event, the Leave Application is only about the applicants’ challenge on the Board’s Decision in refusing their application for late filing of the NOAP. 20.The chronology of events leading to the applicants’ filing of their NOAP with the Board was set out in the Board’s Decision, and it is not necessary for this court to repeat the same here. 21.In sum, the applicants failed to file their completed NCF by the deadline as required by the immigration officer under section 37Y(1) of the Ordinance. After their non-refoulement claims were deemed withdrawn by virtue of section 37ZG(1) of the Ordinance on 24 August 2017 and the applicants were so informed of the deemed withdrawal, they wrote to the Director on 31 October 2017 asking for their claims to be re-opened because the applicants felt that they were still in danger if they were to return to their home country Indonesia. 22.Upon receipt of the applicants’ request for re-opening, the Director wrote to the applicants asking them to provide details for failing to supply their NCF. The applicant never replied to the Director’s request. 23.After the Director issued his Notice of Decision dated 7 December 2017 to refuse the applicants’ application to re-open their non-refoulement claims, the applicants did not seek to appeal/petition against the Director’s Decision until some 3 years and 5 months later on 24 May 2021. 24.According to paragraph 48 of the Board’s Decision, where the Board quoted the grounds of appeal/petition, the applicants claimed for non-refoulement protection because if refouled to Indonesia, the 1st applicant feared harm from her husband who liked to hit people and had a lot of debts. The 1st applicant was forced to repay the debts for her husband. If she went home to Indonesia, she also feared that the 2nd applicant would become a victim. The 1st applicant wanted the 2nd applicant to go to school in Hong Kong. Oral hearing 25.The applicants requested for an oral hearing of the Leave Application and their case was scheduled to be heard on 16 July 2026. 26.As aforesaid, the applicants were absent at the hearing. 27.The 1st applicant called the clerk of this court after the hearing and mentioned that she was not able to attend the hearing because her child was hospitalized. This court had directed her to write to this court to explain their absence. 28.However, nothing was received from the applicants up to the time of this decision, which was more than 2 weeks after the scheduled hearing on 16 July 2026. 29.This court considers that ample time had been given to the applicants to explain their absence and they still failed to do so. It is therefore necessary for this court to deal with the Leave Application to avoid any further delay. This court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 30.The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 31.The applicants did not advance any ground for their intended judicial review in their Form 86, nor in the 1st applicant’s supporting affirmation dated 26 January 2022. She only mentioned in the said affirmation that she did not want to go back to Indonesia because she was in fear and was uncomfortable (dangerous) with her husband, she was in Hong Kong having a girl, her husband did not accept her children because he had debts in the bank, and she was forced to pay. Discussion 32.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 33.Thus, it is not for this court to re-assess the applicants’ cases or their danger upon refoulement to Indonesia. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 34.In deciding an application for late filing of the NOAP, the Board was only required to comply with the then provisions of section 37ZT(2) and (3) of the Ordinance (which were applicable to the applicants’ case). The then section 37ZT(2) provided that the Board must determine the time extension application as a preliminary issue without a hearing, and the Board only needed to take account of: (1) statement of reasons given in the NOAP for lateness; (2) accompanying documentary evidence relied on in support of those reasons; and (3) any other relevant matters of fact within the knowledge of the Board. The then section 37ZT(3) stipulated that the Board may allow late filing of the NOAP if it is satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the NOAP. 35.It is clear from the Board’s Decision that the Board did consider and comply with the then provisions of section 37ZT(2) and (3) of the Ordinance. In paragraph 15 of the Board’s Decision, the Board gave its reason as to why it found that the 3 years and 5 months delay should be viewed as an undue delay. In paragraphs 16 to 18 of the Board’s Decision, the Board gave its reason as to why it did not find that the applicants had provided a reasonable explanation for their 3 years and 5 months delay. This court finds nothing wrong or unreasonable in the way the Board reached such conclusions. 36.This court notes that the Board did not refuse the applicants’ late filing of the NOAP simply because of the extent of lateness and the applicants’ failure to provide a reasonable explanation of the delay. The Board went on to assess the merits of the applicants’ application and to see whether there might be any special circumstances by reason of which it would be unjust not to allow the late filing of the NOAP. 37.The Court of Appeal has held that “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95). 38.As can be seen from paragraphs 20 to 29 of the Board’s Decision, the Board gave detailed reasoning as to why it found that the applicants did not come within the criteria set out in section 37ZG(3) and could not qualify for a re-opening under section 37ZG of the Immigration Ordinance. 39.The Board also laid out in paragraphs 30 to 46 of the Board’s Decision the reasons in finding that the applicants were not prejudiced by the Director’s refusal to re-open their non-refoulement claims without considering the merits of their non-refoulement claims. 40.This court agrees with the Board’s decision in this regard. It is clear that the applicants’ non-refoulement claim could not be considered due to their own failure in providing the Director with a completed NCF within the period allowed. 41.Moreover, the Board had stated explicitly in paragraph 50 of the Board’s Decision that should the Board be wrong about the construction of the Board’s power, and the effects of section 37ZR and section 37ZG of the Ordinance, and that the merits of the non-refoulement claims were relevant, there was nothing in the applicants’ case to show that reasonable state protection or options of internal relocation were not available to the applicants for them to stay away from the violent and debt ridden husband of the 1st applicant or the creditors. 42.The Board was also clearly aware that should the merits of the applicants’ case need to be assessed, the 2nd applicant was only a minor and her case ought to be attended to separately. As aforesaid, the Board had written to the DLS for possible legal representation for the 2nd applicant. However, the DLS was unable to reach the applicants for instructions. 43.With apparently limited information on hand, the Board had given its consideration as to the possible risks the 2nd applicant would face as a minor. The Board found no suggestion that the 2nd applicant would be at risk of statelessness. The 1st applicant had raised no areas of concerns relating to the 2nd applicant other than her own fear of harm to the 2nd applicant on account of the violent behaviour of her husband and the outstanding debts. There was no information before the Board that the 2nd applicant would not have reasonable state protection in her country or that she would not have the option to relocate to other parts of Indonesia with the 1st applicant to stay away from the 1st applicant’s husband or the creditors. 44.More importantly, should the 2nd applicant faced a current risk of harm on current facts, her rights were protected under section 37ZO(2) and section 37ZP of the Ordinance by way of a subsequent claim. 45.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. 46.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicants have failed to establish such a claim and hence leave must be refused. Conclusion 47.For reasons aforesaid, the Leave Application in respect of both the 1st and 2nd applicants is dismissed. Dated the 5th day of August 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
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Cases cited in this judgment