NILUH EKA SUSANTI 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 Director of Immigration as the Putative Interested Party

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 4 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 14 August 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 14 August 2019.

2.  I amend on my own volition the Form 86 to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same. When asked, she said she had nothing to add.

4.  By an affirmation dated 20 January 2026, the Applicant, insofar as I can understand, applies for the consolidation of her husband’s case with her application[1]. I refuse this application. The application was made belatedly, and the particulars of the husband’s case is entirely unknown. In any event, I do not see that the application (if any) falls within either limb of RHC O. 15 r. 6(2)(b), as I do not see that the husband ought to have been joined as a party, that he will have his legal or financial rights directly affected by the determination of this action (including any order made), or that he has the requisite direct interest in the subject matter of the action. Rather, he has at best only a remote, indirect, and contingent interest which is insufficient to justify his intervention in this case. I also do not see that any relevant question or issue arises under r. 6(b)(ii) which is “just and convenient” to determine between the parties in these proceedings, and would not exercise my discretion to accede to the application (Elysium Ltd v Sum Ka Kuen Dominic [2023] HKCFI 1690 at §§19-24, 28, 30, 34, 37, 40-44).

Background

5.  The Applicant is a national of Indonesia. In gist, she fears her parents because she had been in a lesbian relationship since 12 with an older girl and a convert to Islam in 2006 from Hinduism.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[2]. I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Legal Principles

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[3] (iii) the merits of the substantive application[4] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis 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; and

d.   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See Thing Sunil v TCAB [2025] HKCFI 4366, at [9], citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 36], Thomas Lai [2014] 6 HKC 1 at [43 to 45] as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at [17-22, 36-44] citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

10.  The Application was grossly out of time for almost 1 and a half year.

11.  For the reasons stated below, applying the well-known principles stated above, I decline the request to extend time.

12.  First, no reason for the gross delay has been given in writing. When she was offered an opportunity to explain the delay during the hearing, she claimed that she had not received the letter at the time as she had changed her address. But she could not recall when, not even in which year, she ultimately received the letter.   

13.  Second, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and I would have dismissed the present application even if it had been brought within time.

14.  The Applicant did not state any grounds on which the relief is sought, other than stating in the supporting affirmation that “I don’t want to go back Indonesia because of parent don’t accept I change of religion from Hinduism to Islam and now I has a baby in Hongkong if I go back Indonesia my life and my baby life very danger…”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  

15.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [29-43].  In gist, given the extreme vagueness of the Applicant’s evidence, the TCAB attached no credence at all to her claim that she was a lesbian, that she had been in a lesbian relationship for 7 years and that she had suffered harassment from her family because of it [20-22]. In any event, her alleged harm was not of sufficient intensity to rise to the level of persecution or torture [23]. As to her religious belief, again the TCAB rejected her story on the available evidence, including the country of origin information. In any event, she would receive state protection [25, 26].

16.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. 

17.  Third, an extension of time for an unmeritorious application such as the present one, coupled with the gross delay, would result in further undue delay, prove prejudicial, and undermine the orderly conduct and progress of the refoulement process. 

18.  In light of the foregoing, no extension of time is granted and the application is dismissed.

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