ISTI ROHANA v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 612/2020

[2025] HKCFI 5271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 612 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The name of the putative respondent be amended to NRCPO;

2.  The DI be named as a putative interested party instead of as a putative respondent;

3.  Extension of time to file the Form 86 be refused; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 14 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office made on 10 January 2020 (“the Board’s Decision”). A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.  The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 15 November 2018. The DI previously assessed the Applicant’s risk of torture in 2012. His assessment on 15 November 2018 focussed on other applicable grounds including persecution and the Applicant’s rights under the Hong Kong Bill of Rights. Accordingly, the Board, when making the Board’s Decision, sat in its capacity as the Non-Refoulement Claims Petition Office only and the name of the putative respondent should be so amended on my own motion. In addition, the DI had been named a putative respondent, but it is trite that after the Board made a decision upon an appeal/petition against the DI’s original decision, the latter was superseded and should no longer be the target of judicial review. I ordered that the DI be named as a putative interested party instead.

3.  The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the Board in reaching the Board’s Decision to make good her challenge, either in the Form 86, the supporting affirmation or the oral hearing of this leave application before me. Moreover, her Form 86 was filed after the expiry of a 3-month period from the Board’s Decision.

4.  Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A) requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose. The last day of the 3-month period for the Applicant to file his Form 86 fell on 10 April 2020. She was therefore 3 days late with this application. In considering whether to extend the period within which the application shall be made, the Court shall have regard to (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 (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor [2016] 2 HKC 393).

5.  The Applicant did not make any application for extension of time or provide any explanation for the delay in the Form 86 and the supporting affirmation. However, as the delay in this case was minimal, I shall only consider the merits of the Applicant’s leave application in deciding whether extension of time should be granted.

6.  The Applicant is an Indonesian national. She claimed that she could not return to Indonesia because her husband had remarried and spent all her money without caring for her condition and situation. The Board, after an intense factual inquiry with an oral hearing, did not accept that the Applicant’s husband would continue looking for her, threatening her or asking her for money through their son. The Board further held that the Applicant did not actually fear returning to Indonesia for the reasons she claimed or any other reasons.

7.  I have reviewed the Board’s Decision vigorously. In my judgment, the Board’s Decision was based on sound factual findings and there was no apparent legal error in it. Its findings were well within its discretion and supported by evidence.

8.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the administrative decision-maker but not the judicial review Court. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

9.  By reason of the lack of merits in this leave application, extension of time to file Form 86 is refused. The leave application is accordingly 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