ENDANG WINARNI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1835/2019

[2026] HKCFI 2808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1835 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   Extension of time to file the leave application be refused; and

2.   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 2 July 2019 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 20 September 2018 dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 19 January 2017 refusing their application for non-refoulement protection. 

2.  The 1^st Applicant is an Indonesian national, now aged 45. She was married in Indonesia and gave birth to a daughter who is now living in Indonesia.  She divorced her husband in March 2013 because he had an affair.  Then she came to work in Hong Kong as a foreign domestic helper in June 2013.  While in Hong Kong, she started a relationship with an Indian non-refoulement claimant (the “husband”) in 2015. She gave birth to her second child, ie the 2^nd Applicant herein on 28 June 2016 and to her third (her “third child”) on 11 November 2019.  She and her third child are respectively the 1^st and 2^nd Applicants in HCAL 844/2022. 

The delay in taking out the leave application

3.  It is obvious from paragraph 1 that the leave application was filed 9 months and 12 days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made  promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  The leave application was made almost six and half months out of time.  The Applicants have to show very good and compelling reason for extending the time to file the leave application.

4.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (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[2], per Litton PJ. 

5.  Despite clear warning in the Form 86 that an applicant is required to state her reason for delay, if any, the Applicants provided no explanation for the very inordinate late application.  At a hearing on 5 May convened to explore her explanation for the delay, the 1^st Applicant appeared together with her husband and the 2^nd Applicant.  She was unable to proffer any explanation for the delay.  She said she had always made applications promptly.  On the face, that is impossible.  She tried hard to think of an explanation.  She suggested she made the application as soon as she received the letter from the Immigration Department.  That is implausible because the Decision was issued by the Board and not the Immigration Department.  In her supporting affirmation filed together with the Form 86, the 1^st Applicant had exhibited a copy of the Board’s covering letter dated 20 September 2018 informing her of the Board’s Decision and enclosing a copy of the Decision.  Even assuming that she meant she received the letter from the Board, it could not even start to explain why it took more than nine months for the letter to reach her. 

6.  Her husband suggested that the delay may be caused by the discomfort and difficulties arising from pregnancy.  The 1^st Applicant’s third child was born on 11 November 2019.  The 1^st Applicant did not start child bearing until January or February 2019.  The Decision was issued about five months before she started bearing child.  That incontrovertible fact renders the explanation implausible.  That fact also excludes the possibility that the delay was the result of child caring.  In any event, it was not the 1^st Applicant’s own evidence that the delay has anything to do with child bearing or child caring.

7.  The Court understands it is very difficult to recall what had happened, by now, eight years ago.  The delay is very substantial.  The Applicants bear the burden of showing good reason for the delay.  Unfortunately, they are unable to do so.  The delay is far beyond what the principle in Po Fun Chan v Winnie Cheung could permit.  The Applicants’ leave application is time barred.  The very inordinate delay reflects not only a lack of will to pursue their rights, but also an underlying lack of merits in the substantive application.

Conclusion

8.  For these reasons, extension of time to file the leave application and the 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