Case Document

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HCAL 633/2024

[2026] HKCFI 4957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 633 OF 2024

BETWEEN

	Anah	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 26 January 2024 and filed on 22 April 2024, the applicant 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 31 October 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000633_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 May 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Late application

3.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

4.However, the applicant filed Form 86 on 22 April 2024, which was more than 5 months after the Board’s Decision (made on 31 October 2023). The applicant was hence late for more than 2 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

5.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

6.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

7.A delay of more than 2 months is substantial, there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below.

8.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

9.However, for the sake of completeness, this court will still deal with the Leave Application.

The applicant’s case

10.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

11.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being killed by her parents due to her pregnancy out of wedlock in Hong Kong.

Disposal on paper

12.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

13.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

14.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 26 January 2024. In the said affirmation, the applicant only mentioned that she was afraid that when she went back to Indonesia, her family would kill her because she was pregnant and not married.

Discussion

15.First of all, the applicant’s danger from her family due to her pregnancy out of wedlock had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

16.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).

17.Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

18.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 30 August 2023. The applicant was present and was thus given the chance to present her case to the Board in person.

19.As can be seen from the Board’s Decision, the Board did analyze the applicant’s case with care. Its assessment on the applicant’s claimed risks against all the applicable grounds under the USM were laid out in paragraphs 50 to 57 of the Board’s Decision, and it is not necessary to repeat the same here.

20.In gist, the Board found that the applicant had intentionally overstayed in Hong Kong after the premature termination of her employment contract in Hong Kong and she was not yet pregnant at the material time. The Board was of the view that the applicant had exaggerated the risks she faced due to her pregnancy to extend her stay in Hong Kong.

21.Moreover, the Board found that even if the applicant’s account was accepted, the risks she faced from her parents was extremely low. The threats issued by her parents were likely made at the spur of moment when they were upset upon hearing the applicant’s pregnancy out of wedlock. When the applicant contacted her mother when she was already six months’ pregnant and did not intend to abort the child, her mother only expressed her anger and hung up the phone. Both her parents did nothing afterwards to show that they had a real intention to materialize their threat. Even when the applicant had given birth to her child in Hong Kong, her father only threatened to throw away her child, but did not threaten to kill her.

22.The Board also found that the applicant did not claim that she had ever been ill-treated by her parents in the past. The Board did not consider that the ill-treatment the applicant faced attained the minimum level of severity required for protection. There was no evidence of state acquiescence in the applicant’s case, and her fear of returning to Indonesia was not due to any Convention reasons.

23.Moreover, the Board found the applicant’s belief that the police in Indonesia would not protect her was only the applicant’s mere speculation. The Board found that despite setbacks, the Indonesian government had taken measures to curb corruption and improve police efficiency. There were also organizations in Indonesia which helped women in need.

24.Furthermore, the Board had given its reasons in paragraph 56 of the Board’s Decision for concluding that internal relocation was a viable option to the applicant to avoid her perceived risks from her parents, whom the applicant identified as farmers.

25.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

26.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

27.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

28.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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

Dated the 2^nd day of September 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 02/09/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 02/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21771 Director of Immigration Putative interested party’s ref. no.: QA T/C 288/23 (Formerly RBCZ 5000274/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)