NURUL BAITI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1176/2021

[2025] HKCFI 5791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1176 OF 2021

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D E C I S I O N

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Introduction

1.  This is the Applicants’ application by summons filed on 11 September 2025 for extension of time to appeal the order of this Court dated 30 May 2025 (the “Order”)  refusing their application for leave to apply for judicial review (the “leave application”)  of the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office dated 11 February 2019 in respect of herself (the “mother”)  and dated 24 September 2020 in respect of her daughter (the “daughter”).  These decisions are annexed to her supporting affirmation filed together with their Form 86.  

2.  On 21 March 2025, the mother, quoting her RBCL number and that of her daughter, applied by letter to withdraw their leave application, asserting that it is now safe for them to return to her home country and that they wished to return (the “withdrawal application”).   On the very limited information available, this Court could not be satisfied that they made the withdrawal application voluntarily and with knowledge of the consequence of the withdrawal.  The Court gave them directions by letter dated 8 May 2025 to file an affirmation or statement answering the Courts requisitions within 14 days of the directions.  They were also advised that if the directions were not complied with, their withdrawal application will be refused and their leave application may be dismissed for want of prosecution unless they inform the Court of their intention to proceed with the leave application within 14 days of the directions.  The Applicants did not respond.   There is no question that they had not received the directions.

3.  On 30 May 2025, eight days after the said 14 days’ period had lapsed Court refused their withdrawal application and proceed to consider their leave application in respect of the two decisions.  By filing the withdrawal application, the Applicants indicated that they had no intention to persecute their leave application.  They were informed that if they did not answer the Court’s requisitions, the Court may dismiss their leave application for want of prosecution unless they inform the Court that they wish to proceed with the leave application by way of oral hearing.  It was with that knowledge in their mind that they chose not to respond.  The Court accepted their inaction as a confirmation of their intention not to prosecute their leave application.  Accordingly, on 30 May 2025 the Court made the Order refusing their withdrawal application and dismissing their leave application for want of prosecution.  Hitherto, the Order, directions and all correspondence were sent to the Applicants’ last known address at Woo Sung Street as stated in their Form 86.

4.  On 11 September 2025, three and half months later, they took out the summons and sought leave to appeal the Order out of time.  The Court noted that their address as stated on the summons is at Temple Street, but they had never informed the Court of their change of address.

The law

5.  Under Order 53, rule 3(4)  of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order.  By the time the summons was filed, it was two months and twenty-eight days out of time.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time was granted.  If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.  If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

6.  The delay of almost three months in an appeal period of 14 days is very substantial.  The mother gave no explanation for the delay in her supporting affirmation.  The Court understands that their change of address might be a reason for the delay.  The mother did not inform the Court when she received the Order or explain the circumstances occasioning the delay.  These are facts required to enable the Court to assess the reasonableness of the delay and the credibility of their explanation.  The grounds of appeal they advanced are hardly arguable.  An oral hearing was therefore scheduled for the mother to explain the delay and hopefully to perfect their grounds of appeal.

Explanation for the delay

7.  At the hearing, the mother claimed that she just received the Order and Form CALL-1 in September, which is highly unlikely as the documents were sent to her on 30 May 2025.  On further exploration, she admitted that she used to live in another address in Jordan area (which the Court assumed to be in Woo Sung Street)  and then she moved to her present address in Temple Street in August 2025.  She admitted that she had received the Order and Form CALL-1 three months ago.  She said she now changed her mind and did not want to return to Indonesia.  Hence, on her own admission, the mother had actually received the Order at her address in Woo Sung Street shortly after 30 May 2025 and then moved to Temple Street.   About three months later, she had a change of mind and did not want to return to Indonesia.  Her change of mind is her underlying reason for appealing but not a reasonable explanation for the delay.

Grounds of appeal

8.  The grounds of appeal the mother advanced before the Court are that, first, she wanted to remain in Hong Kong temporarily to enable her daughter to stay in school.  Second, both the mother and daughter cannot return to Indonesia because the mother’s family would not accept them and it is still dangerous for them to return.  The danger the mother was referring to is her fear of harm or of being killed by a moneylender because of her inability to repay the money she had borrowed and by her husband for her giving birth to her daughter outside of their wedlock. 

9.  The mother’s first ground of appeal is a very selfish ground, ie to enable her daughter to benefit from the free education in Hong Kong before returning to Indonesia.  That is not a ground protected under the Unified Screening Mechanism (the “USM”)  or the non-refoulement regime.  This ground is in fact an abuse of the regime.

10.  The second ground is a direct challenge of the finding of fact by the Board which found that the Applicants had failed to prove the factual basis to support their claim for protection under any of the applicable grounds under the USM.  This is not permissible except for errors of law, procedural unfairness or irrationality in the Decision.  No such challenges have been made.  In fact, the mother admitted in her withdrawal application that “[they are] ready to go back to [their] home country as [their] issues there are resolved and it’s safe now.”  Even if this ground were allowed to be raised in the leave application, it will be rejected as having no prospect of success. Furthermore, for the purpose of this application, this ground is irrelevant.

11.  The issue raised by this application is whether it is arguable that this Court erred in dismissing her leave application for want of prosecution. The reasons for the Court’s decision are set out in paragraph 3 above. Plainly, on 21 March 2025, the Applicants had indicated they had no intention to prosecute the leave application because they wanted to return to Indonesia and that it was safe for them to return as all their issues there had been resolved.  They had received the Court’s direction letter dated 8 May 2025 and had been warned that the Court will dismiss their leave application for want of prosecution unless they inform the Court that they want to proceed with the application by way of an oral hearing within 14 days.  They did not respond and allowed time to lapse.  Not only that, they sat on it for another three months which only confirmed that they had no intention to prosecute the leave application and that the Court’s decision was rightly made. 

Conclusion

12.  As the Applicants had no reasonable explanation for the delay and no arguable grounds of appeal with prospect of success, their application for extension of time to appeal is refused.