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

HCAL 563/2025

[2026] HKCFI 3025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 563 OF 2025

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 4 May 2026 for extension of time to appeal the order of this Court dated 16 October 2025 (the “Order”) refusing him leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”).

2.  By way of background, on 5 March 2025 the Applicant applied for leave to apply for judicial review of the decision of the Board (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) refusing his application for non-refoulement protection.  On 12 September 2025, he applied by affirmation to withdraw his leave application, asserting that he wished to return to his home country (the “withdrawal application”).  What he asserted did not meet the requirements for withdrawal.  To assist him to make a proper and valid withdrawal, the Applicant was given directions by letter dated 22 September 2026 to file an affirmation or letter or a statement within 14 days of the directions confirming:

(a)     that his withdrawal application is made out of his own free will;

(b)     that it is now safe for him to return to his home country; and

(c)     that he understands that if his withdrawal application is approved, the decision the Board dismissing his appeal against the decision of the Director refusing his claim for non-refoulement protection shall be final and shall remain in force.

3.  The Applicant’s intended withdrawal suggests that he has some urgency in having his leave application finally disposed of.  Hence, the Court offered him an alternative to have his leave application promptly determined on paper, if he is agreeable to that course.  He was therefore also informed that if no affirmation or statement shall have been filed as required, his withdrawal application will be refused and his application for leave to apply for judicial review will continue to be processed without an oral hearing but may be dismissed for want of prosecution unless he informs the Court within 14 days of his wish to have his leave application determined by way of an oral hearing.  He has three options.  First, he may pursue his withdrawal application by filing further information as directed.  Second, he may allow his leave application to proceed on paper without doing anything, but stands the risk that his leave application may be refused on merits or for want of prosecution.  Third, he may continue to pursue his leave application in an oral hearing by informing the Court of his wish.  The Applicant did not respond.  Hence, the Court proceeded to determine his leave application on paper.  On 16 October 2025, having rigorously scrutinized the Decision, the Court was satisfied that there were no errors of law, procedural unfairness and irrationality in the Decision.  Hence, the Court refused his leave application.  Now, more than six months have lapsed, he applies for leave to appeal out of time.

The law

4.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The Application is six months and five days out of time.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.  If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

Explanation for the delay

5.  The delay of six months and five days in an appeal period of 14 days is very substantial.  The Applicant accepted that he received the Order on 16 October 2025.  His explanation for the delay is that he “could not arrange money”.  This is plainly a lame excuse for no court fee is required for filing an appeal. 

Grounds of intended appeal

6.  The grounds of his intended ground appeal is that he had pregnant somebody’s wife (the “wife”) and he will be killed by the wife’s husband (the “husband”) if he is returned to Indonesia.  This is the ground he raised in his claim for non-refoulement protection and the centerpiece of his claim; but nowhere in his non-refoulement claim form (“NCF”) had he mentioned that his affair with the woman had resulted in pregnancy.  The Board considered it implausible that while the husband was aware of the Applicant’s home address, he never went there to confront the Applicant.  Another inconsistency is that the Applicant said in his NCF that the husband saw the Applicant’s message to his wife and used her phone to deliver a threat to kill him.  But, in his testimony before the Board, he said the husband had not sent him any message, it was the Applicant’s friend who informed him that the husband was looking for him.  The timeline of events according to his written claims are troubling and inconsistent with his testimony.  Having carefully considered his claim and having regard to the internal coherence of his NCF, record of screening interview and his testimony before the Board, their consistency with each other and the level of details he provided, the Board found the Applicant was untruthful about his claim.  It did not accept that the Applicant had an affair with the wife, that the wife had been pregnant by him, that the husband found out the affair and threatened him with death and will harm him if he was to return to Indonesia.  Accordingly, the Board came to the conclusion that the Applicant had failed to establish the factual basis in support of his claim.  All these are mixed finding of law and of fact.  Insofar as they are finding of fact, they are absolutely correct.  There is no error of law in the finding.  Insofar as they are finding of fact, they are matters solely within the realm of the Board which the court in a judicial review may not interfere except for errors of law, procedural unfairness and irrationality in the Decision.  Having rigorously examined the Decision with anxious scrutiny, this Court could detect no errors of law or procedural unfairness.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable.  Hence, this Court found there is no prospect of success in the leave application and refused him leave to apply. 

7.  The Applicant’s grounds of intended appeal is just a repetition or reiteration of the factual basis of his claim which the Board had rejected as not having been proved.  In substance, his intended appeal is an appeal against the finding of facts by the Board which is not permissible.  He has not pleaded what was wrong with this Court’s finding in refusing him leave to apply.  Hence, this Court is of the opinion that he has advanced no valid grounds of appeal and his appeal has no prospect of success. 

Conclusion

8.  In conclusion, the Applicant has no explanation for the very inordinate delay of more than six months and his intended appeal has no prospect of success.  Accordingly, leave to appeal out of time is refused.