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

HCAL 1480/2020

[2025] HKCFI 6163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1480 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 from the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion, naming only the Director of Immigration as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Indonesia. By a Form 86 filed on 14 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation (in English with a translation clause) also filed on 14 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of:

(1)  A decision of the Director of Immigration (“Director”) dated 8 February 2017 (“Director’s Further Decision”) which was mentioned in and exhibited to the Affirmation; and

(2)  A decision which describes itself as being one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 11 July 2019 (“the NRCPO Decision”)[1] which was identified as the subject of the application in the Form 86, and was also mentioned in and exhibited to the Affirmation.

2.  I will use the abbreviations and definitions from the USM 1455 Decision (defined below) and from the NRCPO Decision unless otherwise specified herein.

3.  The Applicant sought an oral hearing of her application. Shortly before the hearing scheduled for 27 August 2025, she filed an affirmation (“2^nd Affirmation”) (in English with a translation clause) to which she had exhibited some written submissions in support of her leave application (“Written Submissions”), but which did not address the question of delay. She attended the hearing and made some submissions in relation to the question of delay.

4.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party.

Background

5.  This is set out in the USM 1455 Decision and the NRCPO Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of her claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if she were sent back to Indonesia she would be harmed or killed by a loan shark due to her husband’s failure to pay back a loan, which he had taken out in early 2013 due to gambling debts;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director in a decision dated 16 April 2015 (“Director’s 1^st Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO. The latter determined that the Applicant’s claim for non-refoulment protection failed, rejected her appeal/petition, and confirmed the Director’s 1^st Decision in a decision dated 21 June 2016 (“USM 1455 Decision”)[5]. No further steps were or have been taken by the Applicant in relation to the USM 1455 Decision;

(4)  The Director by a letter dated 17 January 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[6]. The Director received a letter from the Applicant containing some submissions, which were considered and pursuant to which the Director, in the Director’s Further Decision, found that the Applicant had failed to establish BOR 2 Risk in relation to her non‑refoulement claim; and

(5)  On 21 February 2017 the Applicant petitioned to the NRCPO for relief against the Director’s Further Decision. The NRCPO Decision was issued on 11 July 2019 by the same adjudicator who had earlier issued the USM 1455 Decision. He was not satisfied that the Applicant faced BOR 2 Risk upon being refouled, and confirmed the Director’s Further Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

9.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[7] (iii) the merits of the substantive application[8] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

10.  The application was filed more than 3 months after the NRCPO Decision, and more than 9 months out of time. I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review. This is for the following reasons.

11.  Dealing, firstly, with the merits of her application, the Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation. It was only in the 2^nd Affirmation that she claims that she disagrees with both the Director’s Further Decision and the NRCPO Decision, and complains, apparently on the basis of the following which have been copied almost word for word from other cases, that she does not think her case has been determined fairly:

(1)  “Without knowing through how case was determined, it is not easy for me to appeal against the decision. I believe there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim…”, she was “never provided with proper legal and language assistance”, with her limitations in terms of “resources, funding and language capabilities it [had] been burden some for a Non‑refoulement claimants like [her] to appeal against the decision”, and “The determination of Appeal /petition has been never read to me on my own language, and I believe such failures in providing proper assistance is procedurally unfair.”  (Complaint 1)

(2)  “The Respondent’s is in breach of procedural fairness in the following parts”:

i.  “The Respondent’s had unlawfully fettered his discretion by refused my appeal on the grounds that they did not satisfy the requirements”; (Complaint 2A)

ii.  “The Adjudicator acted in a procedural unfairness in dealing with my appeal”; (Complaint 2B)

iii.  “The Respondent’s decisions to refuse my appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.” (Complaint 2C)

iv.  “The Respondent’s failed to meet the greater care and duty owed to a self-Represented claimants.” (Complaint 2D)

(3)  “The discriminatory act of authorities towards Non-refoulement claimants merely on the basis of quick disposed of Non-refoulement cases is unacceptable and is determinate to the spirit of Judicial system.” (Complaint 3)

12.  However, and firstly, given the petition to the NRCPO, the Director’s Further Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18). Hence insofar as the Complaints relate to the Director’s Further Decision, such are not reasonably arguable and must be dismissed.

13.  Further, and as to Complaint 1 (and any relevant attempt to rely on such in relation to Complaints 2A through to 3), I do not see that the alleged lack of legal or language assistance after the Director’s 1^st Decision (in particular on appeal/petition to the NRCPO from the Director’s Further Decision) gives rise to any reasonable argument that the high standard of fairness was breached:

(1)  The high standard of fairness does not grant the Applicant an absolute right to free legal representation or interpretation services at all stages of the proceedings. (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20[9]; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21‑25 and [2022] HKCA 230 at §§16-17).

(2)  There is nothing amiss in relation to the issue of legal representation after the Director’s 1^st Decision. As mentioned in the USM 1455 Decision, the Applicant had been legally represented and assisted by the Duty Lawyer Service (“Duty Lawyer Service”) up to the making of the Director’s 1^st Decision, including not only in relation to completion of the NCF but also at the Interview, and would in the ordinary course of events have also been provided with interpretation services if requested. While the DLS can appear in appeal proceedings, this is subject to a merits test, and absent any assertion that the merits test had not been properly applied, the Applicant cannot complain about the lack of legal representation in proceedings before the TCAB/NRCPO (Zunariyah, supra, at §19). No such assertion is advanced, and there is no sufficient basis to support such.

(3)  Similarly, the high standard of fairness does not require or include provision of interpretation at any time the Applicant claimed or desired, particularly in Hong Kong where the official languages are Chinese and English. She has to find assistance from among his friends and ethnic community. In any event, her grounds of Appeal/Petition in the Notice of Appeal/Petition against the Director’s 1^st Decision were handwritten in English, without any obvious translation thereof. From them, as well as from the Form 86, the Affirmation, the 2^nd Affirmation, and the Written Submissions, it is clear that the Applicant either understood English or has access to, and would have been able to seek, interpretation services and language assistance if necessary (Gurnishan Singh, supra; Gurung Sagar, supra; Kamran Khan, supra; Zafar Muazam, supra).

(4)  Finally, and insofar as the Applicant alleges that the lack of legal and language assistance has led to procedural unfairness, she has not provided any details of how the lack of such assistance led to any error, or unreasonable/unfair procedure, at the NRCPO level. Without such details, the argument is untenable (see Akhondo Shakil, supra, at §§18-19).

14.  The remaining portions of Complaints 2A through to 3 are entirely inadequate as they consist of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the NRCPO Decision and the process by which it was reached. Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil, supra, at §15). It is particularly unsatisfactory that Complaint 3 advances a serious allegation of “discriminatory act” in circumstances where no attempt has been made to provide or identify the particulars of, or any evidential basis for, such.

15.  In any event, I have conducted a rigorous examination and anxious scrutiny of the NRCPO Decision, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness. I do not see that such gives rise to any reasonably arguable ground for judicial review in the nature of any or all of Complaints 1 to 3 (even considered cumulatively), or indeed in the nature of any procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test, that is sufficient to vitiate the NRCPO Decision and justify the grant of leave.

16.  In particular, I do not see that the Applicant has any reasonable argument that the NRCPO committed any public law error in determining the issue of BOR 2 Risk without a hearing and against the Applicant, given the unchallenged finding in the USM 1455 Decision (which was referred to and taken into account within the NRCPO Decision) that the Applicant had not established BOR 3 Risk, the lack of any public law basis to vitiate such, and the subsequent contents of the Applicant’s claims in relation to BOR 2 Risk as made to the Director and the NRCPO. See Kulwinder Kaur [2022] HKCA 49 at §59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33.

17.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

18.  Secondly, there is undue delay in this case as the leave application was filed over 9 months out of time. Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the documents for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

19.  At the hearing, the Applicant explained that the reason for the delay was that she had moved at some unspecified point and had mistakenly not reported her new address, for which mistake she apologised. When I asked her how she had obtained a copy of the NRCPO Decision (as it was exhibited to the Affirmation) she replied that she thought she had received a letter in her old address but the person who lived there did not inform her.

20.  I do not accept that I have been given an acceptable explanation for the delay. It was the Applicant’s obligation to provide an effective address for service in relation to correspondence or notices of the TCAB/NRCPO, and as far as the latter was concerned, the address it was given was the Applicant’s designated means of contact. If there is any delay occasioned by any subsequent ineffectiveness of that address, such falls on her shoulders (s. 37ZA Immigration Ordinance (CAP. 115); Hasmi Rizwan Imran [2018] HKCFI at §§6, 8; HKCA 439 at §§8(a), 10(d), 14-15).

21.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

22.  In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be 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