SULISTIAWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following;

1.   Form 86 be amended, naming the Torture Claims Appeal Board / Non refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   No extension of time be granted for the application for leave to apply for judicial review.

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

Observations for the Applicant:

Introduction

1.   By a Form 86 filed on 8 June 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 2 December 2021 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 29 June 2021 (the “Director’s Decision”).

2.   The Applicant named the Board as both the proposed respondent and interested party.  Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

3.   The Applicant requested an oral hearing for the application.  The hearing took place on 4 February 2026 and the Applicant attended in person.  At the hearing, the Applicant indicated that she had nothing further to add to the application.

Background

4.  The Applicant’s background, the basis of the Applicant’s claim and the arguments the Applicant advanced were set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below for reference.[1]

Discussion

5.  The Board’s Decision was issued on 2 December 2021.  The Form was however only filed on 8 June 2022.  The present application was therefore filed out of time for about 3 months.

6.  No application for extension of time to file the present application was made by the Applicant.  There was no explanation for the delay in either the Form or the supporting affirmation.

7.  In considering whether to extend the time for applying for leave for judicial review, it is well established that the Court should have regard to, inter alia, the following factors: (1) length of the delay; (2) explanation of the delay; (3) merits of the substantive application; (4) prejudice; and (5) questions of general public importance.  See Re Thomas Lai [2014] 6 HKC 1, at [43]-[45]; AW v Director of Immigration and William Lam [2016] 2 HKC 393 (CA), at [27].

8.  In the present case, there was a delay of about 3 months.  There was no explanation for the delay.

9.  More importantly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with realistic prospects of success.  See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

10.  The applicable legal principles in this area are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board.  Assessment of the evidence, country of origin information materials, risk of harm, state of protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  See Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

11.  In the Form and the supporting affirmation, apart from barely asserting that her life would be in danger if she was to return to Indonesia, the Applicant did not provide any ground to support her application.

12.  I do not accept the Applicant’s bare assertion, which was no more than an attempt to re-argue the case that had been rejected by the Board (see, in particular, [45]‑[52] of the Board’s Decision).

13.  In the present case, the Board carefully considered the Applicant’s evidence. A hearing was conducted on 18 November 2021.  The Board’s Decision was comprehensive with adequate reasons.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same.  The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [36]-[58] of the Board’s Decision).  I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success.

14.  On the question of prejudice, none arises from my refusal to extend time for the Applicant to pursue an unmeritorious judicial review.  On the contrary, I consider that it is important to adopt a disciplined approach in a time extension application to prevent unnecessary disruption to public administration.

15.  Lastly, I do not consider that the present application raises any question of general public importance.

16.  As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision.  It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence before me.

Conclusion

17.  For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

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