TINAH MUJIATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1091/2023

[2026] HKCFI 3065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1091 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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 5 July 2023, 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 9 June 2023 (“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/2023/HCAL001091_2023_files/the_Board's_Decision.pdf

2.  The Board’s Decision was in respect of the applicant’s late filing of her Notice of Appeal/Petition (“the NOAP”) against the decision of the Director of Immigration (“the Director”) dated 20 March 2023 (“the Director’s Decision”), which rejected her non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism.

3.  Although the NOAP was dated 28 March 2023, the Board only received the applicant’s NOAP on 13 April 2023, which was out of time. In the Board’s Decision, the Board refused the applicant’s application for the late filing of the NOAP.

Amendment

4.  In Form 86, the applicant named herself and “TORTURE CLAIM APPEAL BOARD / NON REFOULMENT CLAIM PETITION OFFICE” as the putative respondents, when only the Board should be so named.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

7.  It is not necessary for this court to state the details of the applicant’s case here as the Leave Application is only about the applicant’s challenge in respect of the Board’s Decision in refusing her application for late filing of the NOAP.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be ill-treated or even killed by her ex-husband as her ex-husband could not accept the divorce and had threatened to kill her.

Disposal on paper

9.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

10.  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).

11.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 5 July 2023. The applicant only stated in the affirmation that she asked for life (extension of stay) protection under non-refoulement claim.

Discussion

12.  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).

13.  Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. Her alleged danger in her own country had already been assessed but rejected by the Director.

14.  However, 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.

15.  This court is aware that section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, has been amended in 2021. The present section 37ZT(2) no longer requires the Board to consider “any other relevant matters of fact within the knowledge of the Board”. As held by the Court of Appeal, this phrase required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95). However, after the amendment, the Board no longer needs to deal with merits as of 1 August 2021 (see Re Mohammed Aslam [2025] HKCA 914).

16.  As the applicant’s case was not covered by the old section 37ZT(2)(b), it was correct for the Board not to consider the merits of the applicant’s case. The current section 37ZT(2) only requires the Board to take account of the statement of reasons stated in the application for late filing of the NOAP and the evidence relied on in support of the reasons.

17.  As can be seen from the Board’s Decision, the Board did fully consider the circumstances of the applicant, the statement of reasons stated in the applicant’s application for late filing of the NOAP and the lack of evidence in support of the reasons.

18.  As can be seen from the Board’s Decision, the applicant claimed that she had been imprisoned at the Lo Wu Correctional Institution since 17 November 2022 and did not have the means to purchase stamps and envelopes, but she did not provide any reason why she was unable to purchase the necessary stamps and envelopes on time for filing of the NOAP.

19.  The Board considered that even if she did not have the means to purchase stamps and envelopes, she would have at least one opportunity per week from 20 March 2023 onwards to submit the NOAP free of charge. Had the applicant exercised all due diligence in ensuring that the NOAP could be filed on time, she would have (or should have) done so.

20.  Against the above stated background, the Board was not satisfied that the applicant had exercised all due diligence to file the NOAP by the deadline, but failed to do so because of circumstances beyond her control. Thus, the applicant’s application for late filing of the NOAP was refused for having been filed out of time without any adequate reason or evidence in support of her application.

21.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

22.  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.

23.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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

24.  For reasons aforesaid, the Leave Application is 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