ANISAZAHROTUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 277/2021

[2026] HKCFI 376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 277 of 2021

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

Following:

1.  Extension of time to apply for leave to apply for judicial review be refused;

2.  Date of the Decision in respect of which relief is sought be amended on the Court’s own motion; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 November 2021.  The Court’s enquiries revealed that the Board had never made any decision in respect of the Applicant dated 6 November 2021, but had made one dated 6 November 2020 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) dated 31 December 2019 refusing her application for non-refoulement protection. Besides, her Form 86 was filed in March 2021 eight months before the date of the decision was allegedly made.  Obviously, the date of 6 November 2021 was a typographical error.  Hence, on its own motion, the Court amended the leave application by substituting “6 November 2020” for “6 November 2021” as the date of the decision sought to be reviewed (the “Decision”).    

2.  The Applicant had requested an oral hearing.  A hearing on 5 January 2025 was scheduled and notice of hearing were sent to her by post on 9 December 2025 to her address at Block J in Haven Court as stated in her Form 86 and at Block D in Haven Court as discovered from the Immigration Department on 13 November 2025.  Neither of the notices has been returned through the post.  The Applicant had never informed the court of any change of address since filing her Form 86.  There is nothing to suggest that she had not received either notice of hearing.  An attempt was made by a Court staff on the morning of 31 December 2025 to contact her by telephone to remind her of the hearing, but the calls were not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice.  She did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Filing out of time

3.  An application for judicial review can only be made with leave granted pursuant to section 21K(3) of the High Court Ordinance and Order 53, rule 3(1) of the Rules of the High Court (“RHC”).  Order 53, rule 4(1) provides that such leave application must be made promptly and in any event “within three months from the date when grounds for the application first arose.”  This leave application was filed almost four months after the date of the Decision sought to be reviewed.  It was filed 26 days out of time.  In H and Director of Immigration[1] and AH and Director of Immigration[2], the Court of Final Appeal held that where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. 

4.  In AW and Director of Immigration and William Lam[3], the Court of Appeal held that the following factors are relevant in determining whether good reason is shown for extending the period to apply for judicial review: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[4], per Litton PJ. 

5.  The delay in this case is not so substantial that leave may be refused on the ground of delay alone without considering the merits of the substantive application.  Hence, despite the delay, the Court proceeded to assess the merit of her leave application for the dual purpose of determining whether to grant extension of time to file the leave application and whether to grant leave to apply for judicial review, if extension of time was granted.

Background

6.  The Applicant is an Indonesian national, now aged 47.  She overstayed in Hong Kong since 8 September 2008 after her employment contract as a foreign domestic helper was terminated.  She raised a non-refoulement claim by written signification on 23 September 2019.  In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[5]; BOR 3 Risk[6]; Persecution Risk[7]; and BOR 2 Risk[8]. Her claim was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

7.  The Applicant’s personal background, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[9] for reference.  The Applicant has an elder brother and two younger sisters.  In gist, she claims she will be harmed or killed, if returned to Indonesia, by her elder brother because of a land dispute.    Her case is that before her parents’ death, her parents divided their land among the Applicant and her siblings, giving to the Applicant a slightly larger share than that given to her elder brother.  Then when she refused her elder brother’s request in October/November 2018 to sell her share of land to him below market value, her elder brother threatened to kill her. 

The finding of the Board

8.  The Board had concerns about various aspects of the Applicant’s case, such as her brother’s telephone call to buy her share of land in October/November 2018 when on her evidence she had no contact with him since she came to Hong Kong in 2007; her valuation of her share of land; her assertion that her brother did not show any interest in the land portions inherited by her; and the threat related to her by her youngest sister.  The Board considered an oral hearing necessary to clarify these inconsistencies. 

9.  On 14 April 2020, notice of hearing was sent to the Applicant by post addressed to her last known address which she had provided to the Immigration Department.  However, she did not attend the hearing.  The Board was informed by the case officer handling her case that the Applicant could not be reached by telephone at the telephone number which she had provided to the Immigration Department.  Pursuant to section 15 of Schedule 1A of the Immigration Ordinance, the Applicant was notified by letter dated 12 May 2020 of the Board’s intention to determine her appeal on the available information.  In the letter, the Applicant was also asked to provide an explanation for her failure to attend the hearing.  The letter was not returned through the post.  Hence, the Board considered her appeal on the information previously submitted by the Applicant.

10.  In her Notice of Appeal, the Applicant made a new claim.  She claimed that while in prison, she was told by her younger sister that her “elder sibling” (presumably referring to her elder brother) had borrowed money from a bank in Indonesia using the title deed of the land as collateral and the bank had taken possession of the land because her brother had not repaid the money borrowed.  She also said she had lost contact with her husband.  The Board considered the new claim raised several issues regarding the credibility and reliability of her assertions.  In the absence of any explanation from the Applicant, the Board considered that she might have invented this new evidence in the hope of fortifying her appeal/petition.

11.  On the totality of the evidence, the Board was not persuaded on the balance of probability that any of the events which the Applicant claimed took place after October or November 2018 actually occurred.  It was also not persuaded, even to the low standard of proof applicable that there is a real risk that the Applicant will suffer serious harm or death, at the hands of her brother or anybody else, if refouled to Indonesia.

12.  Applying the law applicable to the non-refoulement protection under the USM to the evidence available, the Board found that the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[10].

Grounds for judicial review

14.  The Applicant did not advance any ground for judicial review in Form 86 nor in her supporting affirmation.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the Unified Screening Mechanism; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It found multiple significant inconsistencies and gaps within her evidence.  The inconsistencies were not resolved and the gaps not filled by her failure to attend the oral hearing and to explain her absence.  The Board gave reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non‑refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact, which is exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

16.  Though the delay is not very substantial, the Applicant did not give any explanation for the delay in her Form 86 as specifically required in the form.  She did not attend Court and forwent her last chance to explain her delay.  Having critically examined the Decision, the Court found her intended leave application had no realistic prospect of success.  In the circumstances, she would suffer no prejudice vis-à-vis the Board or the interested parties, if extension of time is refused.  The Applicant has shown no good reasons why extension of time should be allowed.  For these reasons, extension of time to file the leave application and the Applicant’s leave application are refused.

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