WASMAN KHOLIPAH BT SOBIRUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 813/2022

[2026] HKCFI 1912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 813 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

1.   Extension of time for application for leave to apply for judicial review be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 23 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 17 May 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 29 July 2021.

2.  An oral hearing, which was requested by the Applicant, took place before me on 24 February 2026. The Applicant attended in person.

Leave Application Out of Time

3.  Pursuant to O 53, r 4(1) of the RHC, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

4.  Here, the Applicant should have made the Leave Application by 17 August 2022, i.e. within three months from the date when the Board’s Decision was made. However, the Leave Application was only made on 23 August 2022 and hence out of time for 6 days.

5.  S 21K(6) of the High Court Ordinance (Cap 4) provides that:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

6.  As the Court of Appeal explained in AW v Director of Immigration & Anor [2016] 2 HKC 393 at §§23-36, the following (non-exhaustive) factors are relevant to whether an applicant has a good reason to extend time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant (if time is not extended) and to the respondent and public administration (if a challenge is allowed to proceed out of time); and (5) questions of general public importance. The court is to consider the matter flexibly, always with regard to the particular circumstances of each case.

7.  A delay of 6 days is relatively short, although I note the Applicant has not provided an explanation for the delay. 

8.  In any case, I shall proceed to review the substantive merits of the Leave Application, being another relevant factor for consideration.

Background

9.  The Applicant is from Indonesia. Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

10.  In short, the Applicant claimed to be in fear of her former husband if she was returned to Indonesia. According to the Applicant, her mother warned her in May 2020 not to return as her former husband had threatened to kill her for not continuing to help him repay his debts, and the former husband subsequently threatened the Applicant over the telephone himself.

Discussion

11.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

12.  The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state 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 or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

13.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

14.  In this Leave Application, the Applicant has not stated any ground of judicial review. She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

15.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality. In particular:

(1)   The Board presumed for the Applicant’s benefit that the statements made in her application form, her interview with the Director and her appeal documents to the Board were true and reliable: §§28, 31. It decided that an oral hearing was unnecessary: §30.

(2)   In this regard, the Court notes that an applicant does not have an absolute right to an oral hearing and whether there should be an oral hearing is ultimately a question of fairness: St v Betty Kwan and the Director of Immigration [2014] 4 HKLRD 277 at §22. Since there was no question of credibility for the Board to decide, the Court can see why the Board considered an oral hearing unnecessary in the present case: Jagjit Singh v Torture Claims Appeal Board and Director of Immigration [2025] HKCFI 2856 at §§21-22.

(3)   On the basis of the Applicant’s evidence, the Board observed that she had no contact with her former husband since 2018, and no members of her family had ever been harmed or had their property seized or damaged by the former husband. The likelihood of harm to her was low: §§34-35.

(4)   In any event, the Board considered the background country information and took the view that the Applicant would benefit from reasonable state protection in the very unlikely event that her former husband sought to harm her: §§37-44. 

16.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

17.  I make an order that the Leave Application be dismissed for being out of time.

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