TRI HARTINI BINTI BROTO SUWARNO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 3722/2019

[2025] HKCFI 3078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3722 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  Leave granted to the 1^st and 2^nd applicants to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 30 September 2019.

Observations for the applicants:

The Leave Application

1.  By way of Form 86 dated and filed on 13 December 2019 (and amended on 10 July 2025), the 1^st and 2^nd applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 30 September 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003722_2019_files/the_Board's_Decision.pdf

The applicants’ case

2.  The 2^nd applicant is the elder son of the 1^st applicant. At the time when the Board’s Decision was made, the 1^st applicant’s younger son, Tri Hartini Binti Broto Suwarno Lucas H, was also an appellant. Both the 2^nd applicant and the 1^st applicant’s younger son were minors at that time.

3.  The 1^st and 2^nd applicant first made their torture claims under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Director of Immigration (“the Director”) on 19 November 2010. Their claims were based upon the 1^st applicant’s fear that, if they were returned to Indonesia, her family would not accept them and her husband would kill the 2^nd applicant as he was born out of wedlock. The Director rejected their claims on 15 November 2012.

4.  On 10 February 2014, the 1^st applicant made another application for non-refoulement protection under the Unified Screening Mechanism (“the USM”). The application was made on behalf of herself and her two sons, ie the 2^nd applicant and the younger son. Their claims were based upon the 1^st applicant’s fear that, if she and her two sons were to be returned to Indonesia, she and her two sons would be harmed or killed by her husband in Indonesia because her sons were born out of wedlock.

5.  As the 1^st and 2^nd applicants’ Torture Risk[1] were previously assessed, the Director only assessed their BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] this time. The younger son’s non-refoulement claim, on the other hand, was assessed on all the applicable grounds under the USM.

6.  The Director rejected the non-refoulement claims of all three of them on 12 September 2017 (“the Director’s Decision”), and they filed their respective Notice of Appeal/Petition (“the Notices”) to the Board on 13 November 2018.

7.  According to the Board’s calculation, the Notices were filed 13 months and 16 days late. By the Board’s Decision, the Board refused their applications for late filing of the Notices.

8.  Thus, the Leave Application is concerning the Board’s decision in refusing their applications for late filing of the Notices.

9.  After the Board’s Decision, the 1^st applicant’s younger son obtained residency in Hong Kong and hence he did not join in the Leave Application as an applicant. The 2^nd applicant has become an adult and hence he is no longer represented by the 1^st applicant.

10.  The 1^st and 2^nd applicants’ case first came up for an oral hearing before this court on 7 March 2025. After the hearing, this court reserved the decision. However, on 13 March 2025, the 1^st and 2^nd applicants applied for legal aid and hence this court’s decision was not delivered pending the outcome of their legal aid application.

11.  Legal aid was granted to the 1^st and 2^nd applicants and Messrs Cedric & Co were assigned to represent the 1^st and 2^nd applicant on 15 April 2025. Mr Jonathan Kwok was then assigned to be counsel for the 1^st and 2^nd applicants on 22 May 2025.

12.  The case was then heard again before this court on 9 July 2025. Mr Kwok on behalf of the 1^st and 2^nd applicants confirmed that there is only one ground that they wish to rely on in the Leave Application and that is the Board did not consider the merits of their case in the Board’s Decision.

The Board’s Decision

13.  Section 37ZS(1) of the Immigration Ordinance, Cap. 115 (“the Ordinance”) requires the Notices to be filed within 14 days after the notice of the Director’s Decision was given to the 1^st applicant and her two sons. The Board was of the view that the statutory regime governing late filing of the Notices was strict and special circumstances must be shown to make it unjust to refuse late filing of the Notices.

14.  The Board was aware of the requirements in section 37ZT of the Ordinance in that the Board had to take account of the statement of reasons stated in the application for late filing of the Notices and the evidence in support of the reasons.

15.  The 1^st applicant gave reasons in support of her application for late filing (without any documentary evidence in support) as follows:-

“I’m so sorry for late filing Application of Notice of Appeal/Petition because I don’t know what I do, Then the Immigration asking to me to ge the Immigration Wanchai 30/F so that I can do then make Appeal to Applay Non-refoulement Claim Because I don’t want to back to Indonesia I don’t have money, home my all family don’t accept my two sons, also my husband don’t accept my two sons.”

16.  The 2^nd applicant simply adopted the 1^st applicant’s reasons for late filing.

17.  The Board was aware of the reasons provided by the 1^st and 2^nd applicants for late filing and proceeded to determine their applications without a hearing. The Board considered that the 1^st and 2^nd applicants’ reasons that they did not know what to do were not good reasons for their late filing of the Notices.   

18.  The Board then considered the approach adopted by the United Kingdom Court of Appeal in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 in that an application for extension of time should be approached by the decision maker in three stages. The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The second stage is to consider why the failure occurred. The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.

19.  The Board followed the three stages in considering the application for late filing of the Notices. On the first two stages, the Board concluded that a delay of 13 months and 16 days was a serious and significant failure to comply with the rules and the 1^st and 2^nd applicants (as well as the younger son) had no good reasons for the breach. As to the third stage, having evaluated all the circumstances in the case, the Board concluded that it was fair and just to refuse the applications for late filing of the Notices. However, the Board did not mention what circumstances it had evaluated.

20.  The Board also mentioned that there were no other matters known to the Board or revealed by the factual basis of the applicants’ claims which might amount to special circumstances and might make it unjust not to allow the late filing of the Notices.

21.  It is Mr Kwok’s submission on behalf of the 1^st and 2^nd applicants that the Board had clearly omitted to consider the merits of the 1^st and 2^nd applicants’ case.

Discussion

22.  Before its amendment in 2021, the then provisions in sections 37ZT(2) and (3) of the Ordinance (which apply to the present case) stipulated that:-

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of-

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.”

23.  The Court of Appeal in Hong Kong had repeatedly held that, at the third stage of the enquiry alluded to in The Secretary of State for the Home Department v Begum, supra, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances” under section 37ZT(3) of the Ordinance. In this connection, the Board should have, under Section 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor (see Re Qasim Ali [2019] HKCA 430, Re Khan Kamal Ahmed [2019] HKCA 377, and Re Villarosa Rhea Limbaga [2024] HKCA 95).

24.  In other words, under the then section 37ZT(2)(b) of the Ordinance, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so.

25.  However, the Board only mentioned that it had evaluated all the circumstances of the case without mentioning that it had considered the merits of the case. The failure of the Board to assess the merits of the claim is a procedural irregularity (see Re Villarosa Rhea Limbaga [2024] HKCA 95).

26.  In the premises, it is reasonably arguable that the Board had committed a procedural irregularity in not taking into account the merits of the 1^st and 2^nd applicants’ appeal/petition in refusing to allow the late filing of the Notices.

27.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the 1^st and 2^nd applicants have demonstrated such a claim which requires leave to be given for applying the intended judicial review.

Conclusion

28.  For reasons aforesaid, leave is granted for the 1^st and 2^nd applicants to apply for judicial review in respect of the Board’s Decision.

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