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HCAL 1145/2021
[2026] HKCFI 1760
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1145 OF 2021
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BETWEEN
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Maesaroh Sri |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
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 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 13 August 2021, 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 15 August 2019 (“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/2021/HCAL001145_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 March 2018, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendments
3. In Form 86, the applicant named the Board and Non-refoulement Claims Petition Office as the putative respondents, when only the Board should be so named.
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 respondent at all.
5. The applicant named the Director as the putative interested party but spelt the Director’s name wrong.
6. 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”.
Late application
7. 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.
8. However, the applicant filed Form 86 on 13 August 2021, which was almost 2 years after the Board’s Decision (made on 15 August 2019). The applicant was hence late for almost 1 year and 9 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.
9. 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.
10. The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.
11. A delay of almost 1 year and 9 months is very substantial, and no explanation was given by the applicant at all. More importantly, there is no merits in the intended judicial review as discussed below.
12. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
13. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
The applicant’s case
14. 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.
15. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be at risk of harm or death from her husband and her father.
Oral hearing
16. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 3 March 2026.
17. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
18. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
19. 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).
20. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in her supporting affirmation dated 13 August 2021. She only stated in the affirmation that she did not get true justice.
Discussion
21. 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).
22. 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.
23. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 15 July 2019 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.
24. As can be seen in paragraphs 51 to 75 of the Board’s Decision, the Board questioned the applicant extensively during the hearing to try to understand her claimed threats from her husband and her father. The applicant could not provide any details regarding the alleged assaults by her husband in 2003, and her written and oral evidence were inconsistent in many aspects of her claim. It was the applicant’s own evidence that her husband only threatened her in a telephone conversation after she had returned to Hong Kong in 2009 for employment as a domestic helper.
25. The Board also found the applicant’s evidence regarding her feared harm from her father to be very brief and she only referred to one claimed telephone conversation in 2016 with her father as the basis for her claim.
26. The Board discussed in detail the credibility issues of the applicant in paragraphs 76 to 83 of the Board’s Decision. In gist, the Board did not accept that the applicant was a credible witness or her claims were credible. The Board also considered that the applicant’s serious delay in seeking protection did not support her claims that she feared harm if she returned to Indonesia but was more consistent with the applicant wishing to remain in Hong Kong rather than fearing harm in Indonesia.
27. Based on the Board’s assessment of the applicant’s credibility, the credibility of her claims, the available evidence and information, the Board did not accept that the applicant feared harm from her husband and that she suffered harm and threats from him or was responsible for repayment of a loan to a loan shark and friends of her husband. The Board also did not accept the applicant’s claims that she received threats from her husband and her father that she would be killed or harmed if she returned to Indonesia.
28. On the totality of evidence, the Board concluded that the applicant did not face a real risk of any of the proscribed harms under the USM to entitle her to non-refoulement protection in Hong Kong.
29. Moreover, the Board had discussed with the applicant the availability of state protection and the viability of internal relocation. The Board’s overall analysis of the country of origin information (“COI”) indicated that there would be a reasonable level of state protection available to the applicant. The Board also considered that it would be reasonable for the applicant, being an able-bodied person with work experience both in Malaysia and Hong Kong, to relocate if she returned to Indonesia and faced harm in her home area.
30. The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
31. 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.
32. 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
33. For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 25th day of March 2026
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( Teresa NG )
for Registrar, High Court
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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 the applicant’s solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 25 March 2026
Applicant’s ref. no:
Nil |
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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: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
The putative respondent’s ref. no.:
USM 11061/18/4/71/I1242
Director of Immigration
The putative interested party’s ref. no.:
QA T/C 752/18 (formerly RBCZ 12197/16) T8I80
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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