SITI MAESAROH 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.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 7 July 2022 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 7 October 2022. Her application was filed on 6 June 2025, which is late for more than two and a half years. This issue will be dealt with below.

2.  The applicant did not request an oral hearing.

The applicant

3.  The applicant is a national of Indonesia. She is an illegal immigrant. She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her step-father because he had attempted to sexually abuse her and she refused him. Details of her story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001291_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

4.  The Director considered the applicant’s claim in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.  By way of Notice of Decision dated 7 September 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

6.  The applicant appealed the Director’s Decision to the Board. On 28 December 2021, the Board conducted an oral hearing. The applicant had given oral evidence and answered the Board’s questions.

7.  Having considered the applicant’s evidence, the Board made the findings below.

(1)   She was evasive in giving evidence. She avoided queries and switched to other topics. She did not give the Board an impression that she was a truthful witness. [31]

(2)   The number and nature of the inconsistencies and suspicious allegations undermined her credibility, rendering her evidence not believable. [34]

(3)   She may relocate to other places in Indonesia. [36]

(4)   Even if her story was true, there was no evidence that the state was involved and the risks are local risks where internal relocation is viable. [41]-[43]

8.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

9.  The applicant has filed Form 86 dated 6 June 2025 for leave to apply for judicial review of the Board’s Decision.

10.  In support of her application, the applicant only asked for a chance to talk to the adjudicator again.

DISCUSSION

11.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

15.  The applicant’s request to talk to the adjudicator is not relevant to this application. The Court has no power to make such an order. It is not valid to challenge the Board’s Decision[2].

16.  Furthermore, the applicant has not given any explanation for her serious delay in filing Form 86.

17.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

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