NUR MAHMUDAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2699/2019

[2025] HKCFI 214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2699 OF 2019

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-years old national of Indonesia who had previously raised a non-refoulement claim for protection to the Director of Immigration (“Director”) on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her outstanding debts, but subsequently in March 2016 she withdrew her claim through her lawyer from the Duty Lawyer Service (“DLS”) under Section 37ZE (1) of the Immigration Ordinance, Cap. 115, and which was accepted by the Director as validly withdrawn.

2.  One year later on 31 March 2017 the Applicant wrote to the Director to request to re-open her claim, and by a letter dated 20 April 2017 the Director required the Applicant to provide evidence in writing to satisfy an immigration officer the requirements set out in Section 37ZE (2) of the Ordinance as follows:

“Subject to section 37ZF(3), a torture claimant that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that –

(a) since the withdrawal, there has been a change of circumstances that –

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.”

3.  The Applicant however failed to respond or reply or to subsequently provide any evidence in writing to an immigration officer to comply with the requirements as stipulated above, and in the absence of further relevant information or evidence from the Applicant, the Director by a Notice of Decision dated 20 June 2017 refused to re-open the Applicant’s claim, which was sent to her on the same day at her then reported address without being retuned through undelivered post.

4.  Almost 2 years later on 30 May 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as her Notice of Appeal was filed outside the 14-day period within the receipt of the decision under Section 37ZS (1) of the Ordinance, and in pursuance of Section 37ZT (2), the Board proceeded to consider as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a Decision dated 11 September 2019, the Board refused the late filing of the Applicant’s Notice of Appeal.

5.  In its decision the Board found the Applicant’s Notice of Appeal to have been late by more than 1 year and 10 months, that it was a significant delay, that her regurgitation of her claim of fear of harm from her creditor as before was not accepted as any valid reason or justification for her such significant delay, and that there were no special circumstances that would make it unjust not to allow the late filing of her Notice of Appeal..

6.  On 16 September 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any relevant details or particulars or elaboration as to how it did so, nor did she put forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her appeal to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision

7.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

8.  In the Applicant’s case, the Board refused to allow the seriously late filing of her Notice of Appeal for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 28 of its decision including the merits of her intended appeal and the basis of her non-refoulement claim as set out in the Director’s decision and the Applicant’s Notice of Appeal as part of the relevant matters within the knowledge of the Board under Section 37 (2)(b) of the Ordinance, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

9.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their respective consideration and assessment of the Applicant’s request to re-open her claim or the late filing of her appeal.

10.  Moreover, the Applicant recently on 9 December 2024 filed an affirmation requesting to withdraw her application as she wants to return to her home country but without providing any further details or explanation as to what has happened to her claimed risk.

11.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

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