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

HCAL 923/2021

[2026] HKCFI 1273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 923 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

1.   The Form 86 be amended on the court’s own motion.

2.  There shall be no extension for time for the applicant to file the Form 86 out of time.

3.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 29 June 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 9 February 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 19 June 2020 (“Director’s Decision”) on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

    https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000923_2021_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by her family members as she had married a local Chinese man and had a child born out of wedlock while she was separated from her Chinese husband. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 February 2026. At the hearing, the applicant attended the hearing in person.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. No such grounds were provided in either the applicant’s Form 86 or the supporting affirmation.

6.  At the hearing, the applicant stated that she had nothing to say despite having been reminded that she had provided no written grounds. She said that she did not want to go home as she had no family members in Indonesia.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, the applicant failed to attend the scheduled hearing before the Board. Hence, the Board determined the applicant’s appeal on paper. After having considered all the documents including the relevant COI, the Board found that there was no basis for the applicant’s fear of risk of harm if refouled as her claimed fear of honour killing was found to have been rare in Indonesia and that the past ill-treatment from her marriage outside of her Islamic religion by marrying a Buddhist did not meet the requisite level of severity. The Board further found that internal relocation was reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant has not advanced any grounds. In the circumstances, I am satisfied that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

9.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when the Board’s Decision was delivered. The applicant was late for about 6 weeks.

10.  Whilst a delay of 6 weeks cannot be described as substantial, the applicant however would still be required to explain for the delay. Her explanation in the supporting affirmation that she did not receive “the letter” is vague. I do not accept her explanation for the delay. Having regard to the lack of merits I have determined above, I decline to exercise my discretion to extend the time to allow her to file the Leave Application out of time.

Orders

11.  The Form 86 be amended on the court’s own motion.

12.  There shall be no extension for time for the applicant to file the Form 86 out of time.

13.  The applicant’s application for leave to apply for judicial review be 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