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

HCAL 2623/2024

[2025] HKCFI 1715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2623 of 2024

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

Following;

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

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) 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 24 December 2024 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 15 December 2023 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 28 March 2023 dismissing her application for non-refoulement protection.

Explanation for the delay

2.  The leave application was filed one year and twelve days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made about nine and half months out of time. Extension of time to file the leave application is required.

3.  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 grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant 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. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

4.  Despite clear indication in the Form 86 that an applicant is required to state her grounds for application and reasons for delay, if any, the Applicant provided neither. On 28 February 2025, the Court gave her directions to file an affirmation or statement explaining her reason for the late application, in particular:

(a)  why it took her a year to file the application for leave to apply for judicial review;

(b)  the date and circumstances when she was first informed of the outcome of her appeal against the decision of the Immigration Department refusing her claim for non-refoulement protection to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”);

(c)  all her correspondence addresses since 28 March 2023 before she filed her notice of appeal against the decision of the Immigration Department;

(d)  the date of change of address thereafter, exhibiting supporting documentary evidence, if available, such as tenancy agreement, documents or correspondence from Immigration Department, Correctional Services Department or other government departments, envelopes showing the changed address and date of posting;

(e)  the date of reporting the change to the Immigration Department or the Board, exhibiting supporting documentary evidence, if any; and

In response, the Applicant filed a letter dated 17 March 2025 providing the following reply.

5.  In respect of Items (a), she said she never received the Decision from the Board dismissing her appeal. In respect of Item (b), she said she only learned about the outcome of her appeal a year later when she was informed by an immigration officer when she reported her recognizance; then she obtained a copy of the Decision from the Board. In respect of Item (c), she said she had never changed her correspondence address since 28 March 2023 before she filed her Form 86 until she obtained a copy of the Decision from the Board, which by inference would be late November or early December 2024. She did not respond to item (e) which was designed as a means of verification of her explanation.

6.  The Applicant’s correspondence address as stated in the Form 86 is Castle Peak Bay Immigration Centre (“CIC”). Her answer to Item (c) therefore suggests she was held in CIC from 28 March 2023 before she filed the Notice of Appeal with the Board to 24 December 2024 when she filed the Form 86. To the Court’s knowledge that would be highly unlikely, as claimants are usually released on recognizance after a couple of months’ detention.

7.  From the documents discovered from the secretariat of the Board, the Court noted that the Decision was sent to the Applicant by post at her address in Chung Yeung Street on 15 December 2023 and again on 11 November 2024 at CIC upon her request for a copy. These documents suggest the Decision had been sent on 15 December 2023 to the Applicant at her address in Chung Yeung Street as provided by her to the Board in the normal course of the appeal and a copy of the Decision was resent to her on 11 November 2024 at her address in CIC on her request as she claimed in her answer to Item (b). These documents revealed that she had been released from CIC at some stage before the Board issued its Decision and the Decision was sent to her at her address in Chung Yeung Street. These documents flatly destroyed her story that she was in CIC since filing the Notice of Appeal to the date she learned about the Decision from an immigration officer. She had not been honest with the Court in her explanation. The inference is that she has no reasonable explanation for the delay. But instead of drawing such adverse inference, the Court scheduled a hearing to hear her further explanation.

8.  At the hearing, the Applicant initially maintained her story. However when confronted with the documents, she admitted her story was not true. She admitted she had been released from CIC at some stage after filing her Notice of Appeal and lived in Chung Yeung Street after the hearing of the appeal, she move to an address in Cheung Sha Wan. She admitted she had not informed the Board of her more from Chung Yeung street to Cheung Sha Wan. Obviously, it was for that reason that she did not receive the Decision at the time it was issued. As was held by the Court of Appeal in Karamjit Singh[3] and Re Hasmi Rizwan Imran[4], it is the applicant’s obligation to keep the court informed of her means of contact. If she does not, she has to bear the consequence which her failure brings. Accordingly, the Court comes to the conclusion that the Applicant has no reasonable explanation for the delay and has to suffer the consequence that her leave application will not be entertained. Thus, extension of time to file the leave application may be refused under the principle in Po Fun Chan v Winnie Cheung without the need to consider the merits of her leave application.

9.  For completeness, the Applicant’s claim is that if returned to Indonesia, she will be harmed or killed by her husband’s creditor for being unable to settle the outstanding loan for her husband. The Board found numerous significant discrepancies in her evidence and did not believe in her story. It also found reasonable state protection readily available and that her feared risks, if genuine, are localised in her home area and could be mitigated by seeking state protection and resorting to internal relocation. These are finding of facts which the Court in a judicial review will not intervene save for errors of law, procedural unfairness or irrationality in the Decision. Having also examined the Decision with anxious scrutiny, this Court cannot detect any such vitiating elements in the Decision which would make it unfair not to grant her extension of time to file the leave application.

10.  As the Applicant has offered no explanation for the very substantial delay, the Court could have no factual basis on which to exercise its discretion to grant her extension of time. On the other hand, a person in genuine fear for his safety if refouled would have wasted no time to apply as this is her last opportunity to challenge the Board’s decision. The Applicant’s unexplained delay not only evinced a lack of intention to prosecute her leave application, but also reflects an underlying lack of merits in her leave application and her non-refoulement claim. Her conduct resulted in delay in her refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. Her conduct is a clear abuse of legal process.

Conclusion

11.  For the above reasons, extension of time to apply for leave to apply for judicial review 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