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

HCAL 1244/2020

[2026] HKCFI 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1244 OF 2020

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D E C I S I O N

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1.  By a summons issued on 24 November 2025 (“the Summons”), the Applicant applies for extension of time to appeal the order of this Court dated 7 November 2025 (“the Order”) refusing her leave to apply for judicial review (“JR”). Her intended JR was against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 10 June 2020 rejecting her non-refoulement claim.

2.  The Summons was heard by this Court on 30 December 2025. At the conclusion of the hearing, my decision on the Summons was reserved, and it is now handed down with reasons.

3.  An applicant does not require leave to appeal against a Court of First Instance (“CFI”) judge’s refusal to grant leave to apply for JR (Order 59, rule 21(1)(g), Rules of the High Court, Cap 4A). However, an applicant who wishes to appeal against such refusal has to observe the time limit under Order 53, rule 3(4), i.e., within 14 days after the refusal. The 14-day period against the Order of this case expired on 21 November 2025. The Applicant was late for three days when the Summons was filed.

4.  A CFI judge has the power to extend the said 14-day appeal period under Order 59, rule 2B(6). The application to extend time must be made promptly. It should be supported by an affirmation deposing to any facts relied upon by an applicant and giving a full account of, and an explanation for, the whole delay since the expiry of time. In considering whether to extend time for the intended appeal, the Court shall have regard to: (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospect of success in the intended appeal; and (iv) the prejudice to the respondent if extension of time was granted (Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346).

5.  In the Applicant’s supporting affirmation, it was said that she failed to lodge an appeal within the 14-day timeframe because she did not timely receive the Court’s correspondence about the dismissal of the JR. A copy of the Court’s Form CALL-1 ([2025] HKCFI 5313)[1] setting out the reasons and outcome of the Applicant’s JR leave application was posted to an address on Woosung Street, Kowloon by this Court’s supporting staff on 7 November 2025 (the same date of the Order). The post was returned to the Court undelivered on 3 December 2025 with the reason “no such address”. In the hearing of the Summons, the Applicant told the Court that she had moved away from the Woosung Street address she previously provided and lived elsewhere. Immediately after the Summons’s hearing, she put down her latest address (on Hong Kong Island) in writing to update the Court’s record.

6.  On a more careful comparison of the Woosung Street address the Applicant previously provided in her court document and the one specified on the envelope containing the Form CALL-1 sent out on 7 November 2025, it is noted that the specific unit/flat number was omitted from the latter. This might have contributed to the reason why the Applicant did not timely receive the Form CALL-1. As such, even though it is a litigant’s responsibility to update his/her address for service in the Court’s record and the Applicant said she had actually moved away from the Woosung Street she previously provided after the hearing (but it was uncertain exactly when), on balance, I find that the Applicant has a reasonable explanation for the delay.

7.  In any event, the delay in this case is not significant, and there is unlikely to be any prejudice if an extension of time is granted. I should therefore focus on the prospect of success in the intended appeal but not the delay itself in determining whether leave should be given.

8.  It is well established that the Court does not provide a further avenue of appeal on the merits of the underlying non-refoulement claim. In an appeal against refusal of JR leave in a non-refoulement case, the Court of Appeal would only examine the decision of the CFI judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed (Nupur Mst v Director of Immigration [2018] HKCA 524).

9.  In the Applicant’s affirmation, the Applicant said the Order was unfair and she had not been given an opportunity to clarify and present the specific details of her case. It was further said the lack of opportunity has significantly impacted her ability to convey the genuine risks she will face if she is forced to return to her home country (Indonesia), and she believed that another thorough examination of her circumstances would be critical.

10.  During the hearing of the Summons, through the assistance of an Indonesian interpreter, this Court invited the Applicant to explain why she had not been given an opportunity to clarify or present her case. The Applicant appeared to be completely ignorant of what had been stated in the very affirmation she filed. She did not even understand that this Court had previously heard her JR leave application and decided to dismiss it. She could not appreciate, in substance, what the application under the Summons is about. She only wanted to prolong her stay in Hong Kong.

11.  Obviously, the documents filed by the Applicant (which were all written in English) were not prepared by her, and she did not know what the documents are about. In view of this situation, this Court invited the interpreter to interpret the Summons, her supporting affirmation and also my Form CALL-1 to the Applicant. After listening to the interpretation, the Applicant said she had nothing to say.

12.  In the Form CALL-1, I explained that the Applicant had not put forward any public law grounds of illegality or irrationality against the Board’s Decision, in her court documents or during the oral leave hearing before this Court. She mentioned in passing that the Board’s procedure was unfair, but she was unable to give any particulars to substantiate her allegation.

13.  In this case, the Board did not give an oral hearing to the Applicant, but had considered and applied the guidelines in ST v Betty Kwan [2014] 4 HKLRD 277 before deciding that the Applicant’s appeal/petition to the Board could be justly determined without an oral hearing. This decision was, in my view, correct, as the Applicant’s factual assertions in the tier-1 stage before the Director of Immigration and the grounds set out in her appeal/petition were basically the same. There was no suggestion as to what evidence the Director had omitted in the tier-1 process, what further factual evidence or country information she could rely on in the tier-2 process before the Board to establish her claim and/or lead to a different outcome from the tier-1 decision. In these circumstances, it was not procedurally unfair for the Board to determine the appeal/petition without an oral hearing.

14.  In the absence of any proper suggestion as to why I have erred in refusing her JR leave, I do not see any prospect of success in the intended appeal at all.

15.  Having considered all the relevant factors to which I should have regard, I decide that the interest of justice does not require me to grant an extension of time in the circumstances of this case. Accordingly, the application for extension of time to appeal is refused and the Summons is dismissed.