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HCAL 3411/2019
[2025] HKCFI 4209
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3411 OF 2019
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Mubikoh |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 6 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003411_2019_files/the_Board's_Decision.pdf
2. The applicant made a non-refoulement claim under the Unified Screening Mechanism (“the USM”) to the Director of Immigration (“the Director”) on 5 March 2014. The Director rejected the applicant’s non-refoulement claim on all the applicable grounds under the USM on 18 October 2017 (“the Director’s Decision”).
3. On 28 August 2019, the applicant filed a Notice of Appeal/Petition (“the Notice”) against the Director’s Decision. The Notice was filed out of time for more than 21 months. Thus, the Board had to determine whether it would allow the late filing of the Notice.
4. In the Board’s Decision, the Board refused to allow the late filing of the Notice. Thus, the Leave Application is only in respect of this decision of the Board.
Amendments
5. The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and only the Director should be the putative interested party.
6. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
7. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she and her daughter would be at risk of harm from the applicant’s father and villagers in her area due to the birth of her daughter out of wedlock in Hong Kong. She also feared harm from various persons from whom her father purportedly borrowed money.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application. Her case was heard on 3 July 2025.
10. The applicant said that she wanted to look after her daughter in Hong Kong and hence she could not return to Indonesia. Her daughter, who is 11 years old now, was born in Hong Kong and has right of abode here. The daughter’s father is a Hong Kong resident, but the applicant had lost contact with him. She was also afraid that her daughter would not be accepted if she were to bring her back to Indonesia with her.
Grounds for judicial review
11. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
12. The applicant did not identify any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 18 November 2019. She merely stated in the affirmation that the Board disregarded her dangerous situation.
13. At the oral hearing, she only mentioned that she wanted to stay in Hong Kong to take care of her daughter.
Discussion
14. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
15. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
16. The Board did consider the then provisions of section 37ZT(2) and (3) of the Immigration Ordinance, Cap 115, which required the Board to take account of: (a) the reasons stated in the application for late filing of the Notice and any documents relied on in support of those reasons; and (b) any other matters of fact within the knowledge of the Board. The Board may allow late filing of the Notice if it is satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the Notice.
17. However, the Board found that the reasons provided by the applicant did not constitute “special circumstances” which would justify the late filing. The reasons that the applicant provided were as follows:
“I was advised by my lawyer not to appeal my USM decision.
However, recently I have been pushed by immigration officer in CIC to appeal even though I told them, and my lawyers told them, I have a pending maintenance claim for my daughter (now a Hong Kong permanent residence) against her father. The next court hearing is 30 September 2019. Please see enclosed letters between Immigration and my lawyer.
I therefore have no choice but to appeal this decision.”
18. The applicant provided copies of the correspondence from her solicitors acting in relation to an application for her custody and maintenance of the applicant’s daughter, including the following:
(i) letter from her solicitors to the Immigration Department (“ImmD”) dated 25 June 2019;
(ii) the birth certificate of her daughter;
(iii) letter from her solicitors to ImmD dated 15 July 2019;
(iv) letter from ImmD to the applicant dated 19 August 2019; and
(v) letter from her solicitors to ImmD dated 22 August 2019.
19. The Board had considered the following matters:-
(1) Length of the delay – the Board considered firstly that the period of about 22 months between the date of the Director’s Decision and the applicant’s application for late filing of appeal was lengthy, given that the Notice should be filed within 14 days of the date of the Director’s Decision.
(2) Reasons for the delay – the applicant apparently sought to delay the execution of the removal order against her until her maintenance proceedings was finalized. She alleged to have been pushed by the ImmD to appeal to the Board.
20. Although the Board accepted that it was preferable that any issues relating to custody and maintenance be determined prior to the applicant’s departure from Hong Kong and that was indeed in her daughter’s best interests, it was not satisfied that any such matters were within the purview of the Board. The Board considered correctly that any decision to allow the applicant to remain in Hong Kong pending the conclusion of custody and maintenance issues were the responsibility of relevant sections of ImmD.
21. The Board was therefore not satisfied that the applicant’s court case in relation to custody and maintenance issues relating to the daughter constituted special circumstances which would justify the late filing.
22. The Board then went on to consider the grounds of appeal advanced by the applicant and the merits of the applicant’s application for non-refoulement in accordance with the principles as laid down by the Court of Appeal in Re Qasim Ali [2019] HKCA 430. The Board also considered the applicant’s alleged danger that had not been previously mentioned, namely that she would face harm from people in her village as her daughter was born out of wedlock.
23. The Board noted that the applicant did not provide any updated evidence to the Board regarding her circumstances. The Director’s Decision had included avenues for assistance for persons in the applicant’s circumstances from government and non-government agencies, and also explored options for the applicant’s relocation. The applicant did not refer to these issues in the application for late filing of the Notice.
24. On the evidence before the Board, the Board was not satisfied that the applicant would be harmed in Indonesia by her father or villagers on the basis of her child. The Board was also not satisfied that the applicant would be at risk of harm in relation to persons from whom her father purportedly borrowed money.
25. As held by the Court of Appeal, “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377 and Re Villarosa Rhea Limbaga [2024] HKCA 95).
26. It is clear that the Board did consider the merits of the appeal and was entitled to conclude that there was no special circumstances to allow the late filing of the Notice.
27. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.
28. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16thday of September 2025
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( Irene LEE )
for Registrar, High Court |
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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 16 September 2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
16 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16235/19/8/97/I1744
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2305/17
(formerly RBCZ/3000607/14)
QA T/C 2303/17
(formerly RBCZ/3000608/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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