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

HCAL 2468/2019

[2026] HKCFI 2757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2468 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 application for leave to apply for judicial review (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 26 August 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 11 January 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”), refusing her application for non‑refoulement protection. 

2.  A hearing on 22 April 2026 was scheduled for her and notice of hearing was sent to her by post on 8 April 2026 to her address as stated in her Form 86, and as confirmed by the Immigration Department on 29 September 2025.  An attempt was made by a court staff on the afternoon before the date of the hearing to contact her by telephone to remind her of the hearing, but the call was not answered.  There is nothing to suggest that the Applicant had not received the notice of hearing or had moved.  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.  However, 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.

The delay in taking out the leave application

3.  The leave application was filed 7 months and 15 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 four and half months out of time.  The Applicant has to show good 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 grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application.  She did not attend the hearing and forwent her last opportunity to explain the inordinate delay.  The Court could not find any good reason to extend the time for filing her leave application.  The leave application was made many months out of time.  The principle in Po Fun Chan v Winnie Cheung is applicable.

6.  The Applicant is an Indonesian national and married.  While she was in Hong Kong, she gave birth to a daughter with a Pakistani out of wedlock.  The Court noted that she had applied to the Director for protection in respect of herself and her daughter and she also appealed to Board against the Director’s decision in the Notice refusing their application for protection.  The Court also noted that the Board refused their late filing of the Notice of Appeal and it did so after having considered merits of their intended appeal.  However, the Applicant applied for judicial review on behalf of herself only.  That was probably the result of an oversight.  However, if the Court were to join her daughter as a party to the leave application even with retrospective effect, her daughter’s application will also be grossly out of time and will suffer the same fate as the Applicant.  Thus, the Court took no step to join the daughter as a party and left the issue to be resolved should the occasion arise.

Conclusion

7.  For the above reasons, extension of time for the Applicant 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