Case Document

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HCAL 741/2025

[2026] HKCFI 5880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 741 OF 2025

BETWEEN

	Dapiyah	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 in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The summons filed on 11 August 2026 be dismissed.

3.  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 and filed on 24 March 2025, 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 19 December 2024 (“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/2025/HCAL000741_2025_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 August 2024 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected her non-refoulement claim.

Amendments

3.The applicant named “Torture Claims APPeal Board” and “Non-Refoulement claims Petition OFFice” as the putative respondents, and “Torture claims APPeal Board” and “Non-Refoulement Claims Petition office” as the putative interested parties in Form 86, when only the Board should be the putative respondent, and the Director should be the putative interested party.

4.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 putative party at all.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Late application

6.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.

7.However, the applicant filed Form 86 on 24 March 2025, which was 3 months and 5 days after the Board’s Decision (made on 19 December 2024). The applicant was hence late for 5 days 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.

8.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.

9.The applicant did not apply for extension of time or provide any explanation for the delay when she filed the Leave Application.

10.At the oral hearing before this court, the applicant explained the delay by saying that she was ill at the material time. Upon this court’s questioning, the applicant confirmed that she had been ill for just one week.

11.Although the delay of just 5 days is not substantial, the explanation given by the applicant is clearly not satisfactory. She had 3 months to make the Leave Application after the Board’s Decision. If she had been ill for just a week during that period, her illness could not have prevented her from making the Leave Application within time. More importantly, there is no merit of the intended judicial review at all as discussed below. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application. The Leave Application can be dismissed on the ground of being made out of time alone.

12.However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

13.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.

14.In sum, the applicant initially claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or even killed by her ex-husband named Darlan due to a money problem.

15.In her Notice of Appeal/Petition filed with the Board, the applicant further claimed that her ex-husband would kill her because he knew that she had a boyfriend in Hong Kong, and she suffered domestic violence when she was in Indonesia.

16.At the Board’s hearing, the applicant told the Board that there was a loan problem before her mother died, money was still owed to the hospital although the applicant did not know how much was owed.

Oral hearing

17.The applicant requested for an oral hearing of the Leave Application and her case was heard on 15 October 2026.

18.As the applicant had on 11 August 2026 filed a summons requesting to submit a certificate of marriage and indicated that she was waiting for independent [sic] visa, this court first asked the applicant for the purpose of the summons.

19.The applicant confirmed that the purpose of the summons was to show this court that she is now married to a Hong Kong resident and she wanted to stay and live here.

20.This court then explained to her that the summons was irrelevant to the Leave Application, which was dealing with her challenge against the Board’s Decision regarding her non-refoulement claim.

21.As to the grounds for the applicant’s judicial review, she merely said that she had nobody back in Indonesia, and the Board’s Decision was wrong because she would have to be deported.

Grounds for judicial review

22.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).

23.The applicant did not advance any grounds for the intended judicial review in Form 86.

24.In her supporting affirmation dated 24 March 2025, the applicant only mentioned that she did not want to go back to Indonesia because her life was in danger, her ex-husband would kill her, she got domestic violence when she was in Indonesia, and she also needed to pay the bill to hospital but she did not have money to pay the bill.

25.As aforesaid, the applicant only said at the oral hearing before this court that she had nobody back in Indonesia, and the Board’s Decision was wrong because she would have to be deported.

Discussion

26.First of all, this court will deal with the applicant’s said summons filed on 11 August 2026 and supported by her affirmation dated 11 August 2026.

27.As mentioned, the applicant confirmed that the sole purpose of the summons was to prove that she is married in Hong Kong to a Hong Kong resident and she wanted to stay and live here. However, the fact that she has a family here in Hong Kong is simply irrelevant to the Leave Application.

28.As held by the Court of Final Appeal in Comilang & Ors v Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong. Thus, separation with her husband was not a basis on which the applicant could establish her non-refoulement claim.

29.As it would not be relevant to her non-refoulement claim by adducing the document mentioned in the said summons and her affirmation dated 11 August 2026, this court is not prepared to admit those documents and hence the said summons is dismissed.

30.As to the matters that were raised in the applicant’s affirmation dated 24 March 2025 and at the oral hearing, namely that she faced danger from her ex-husband, including that she suffered from domestic violence when she was in Indonesia, as well as the hospital bill that she was unable to repay, all those matters had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision.

31.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).

32.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

33.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 3 December 2024. The applicant was present and hence she was given the chance to present her case to the Board in person.

34.As can be seen from the Board’s Decision, the Board had assessed all the applicant’s claimed risk. The Board’s assessment and consideration of the applicant’s claims were laid out in paragraphs 51 to 66 of the Board’s Decision.

35.In gist, the Board accepted the basic facts of the applicant’s claims. However, in relation to the applicant’s risk from her ex-husband, the Board found that the applicant was not at real risk from him. On the applicant’s own evidence, she had separated from her ex-husband many years ago and their divorce was finalized in 2018. Her ex-husband had re-partnered and had children with his partner.

36.With regards to the applicant’s inability to repay the hospital bill that was incurred for the treatment of her mother, the Board found no evidence to suggest that the hospital would inflict serious harm or death upon the applicant if she could not pay or did not pay.

37.Furthermore, the Board had given its reasons in paragraph 60 of the Board’s Decision for the finding that the applicant did have avenues to pursue if she required police assistance or protection in the future in Indonesia.

38.The Board had also had regard to the applicant’s concern that she had no house to live in if she returned to Indonesia. The Board had referred to country of origin information (“COI”) that support agencies, which protected women’s rights and provided practical support to women at risk, were available in Indonesia. The Board found that the applicant did not face a real risk of being without shelter or accommodation if she was returned to her country.

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

40.Although the Board did not make findings as to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

41.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm and that state protection was available to her, it is not necessary for the Board to consider internal relocation.

42.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI 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 conclusion.

43.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.

44.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

45.For reasons aforesaid, the summons filed on 11 August 2026 is dismissed, and the Leave Application is dismissed for being made out of time and devoid of merits.

Dated the 21^st day of October 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: 21/10/2026 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: 21/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 24466 Director of Immigration Putative interested party’s ref. no.: QA T/C 1087/24 (Formerly RBCZ 5001036/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)