SITI FATUNATUL MARIFAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2953/2019

[2025] HKCFI 1631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2953 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 November 2018 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 8 February 2019. Her application was filed on 9 October 2019, which was late for about 8 months. This issue will be dealt with below.

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 31 March 2025. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Indonesia. In due course, she lodged her non-refoulement claim.

5.  Notice was served on the applicant on 8 January 2018 including a Notice to Persons Making a Non-refoulement Claim (the “Notice”) and a blank Non-refoulement Claim Form (the “NCF”). The applicant was informed that she had to complete the NCF and return within 28 days (ie. 26 February 2018).

6.  The Director had not heard from the applicant and her non-refoulement claim was treated as withdrawn on 7 March 2018.

7.  The Director received a letter dated 11 July 2018 but contained no information or evidence about the failure to return the completed NCF as required due to circumstances beyond the applicant’s control.

The Director’s Decision

8.  On 18 July 2018, the Director by his Notice of Decision informed her that it was decided that her on-refoulement claim would not be re-opened for the reason that she failed to provide sufficient evidence in writing to support her failure to return the completed NCF within the time limit that was due to circumstances beyond control.

The Board’s Decision

9.  On 23 July 2018, the applicant lodged an appeal to the Board, which was dismissed without a hearing. The Board was not satisfied that exceptional circumstances existed that supported her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 9 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision and but no valid grounds were put forward.

DISCUSSION

12.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  From the facts above, the applicant’s claim must be treated as withdrawn under section 37ZG (1)A of the Ordinance:

“(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).”

15.  Section 37Y(2) provides:

“ The claimant must return the completed torture claim form in accordance with subsection (1)(b)—

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b) within any further period that an immigration officer allows under subsection (3).”

16.  The applicant’s application for re-opening her claim must be rejected because she did not comply with section 37ZG(3) of the Ordinance, which provides:

“ A torture claim treated as 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 the person— (Amended 7 of 2021 s. 14)

(a) had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b) failed to return a completed form as required under the section because of circumstances beyond the person’s control. (Amended 7 of 2021 s. 14)”

17.  The Board had taken into consideration of the above statutory provisions; and it had also considered the letters the applicant had sent to the Director and it found:

“19. Having carefully considered the letters to the Department, I also find that the Appellant failed to provide evidence that due to circumstances beyond her control, she had not been able to return a completed NCF as required.”

18.  The applicant had stated in the Notice of Appeal to the Board that she did not appear to Kowloon Bay in January because she did not have money for transport as she had lost her octopus card and her mobile phone. The Board considered that she did not put her reasons to the Director for his consideration and the incidents took place before the withdrawal notification on 7 March 2018. The Director had given due notice to her to put her evidence before him in support of her application for re-opening her claim. The Board therefore found that it was not satisfied that exceptional circumstances exist that justify the consideration of her statement and even if the statement were to be considered, it did not reveal her failure to return the completed NCF on 26 February 2019 was due to circumstances beyond her control.

19.  For those reasons above, the Board dismissed her appeal.

20.  It is obvious that the Director and the Board had properly applied the law to the applicant’s application for re-opening her claim. The Board’s Decision on the finding of the facts has no error in law or procedural irregularity and its decision is not Wednesbury unreasonable. The applicant has not raised any valid reason to challenge the Board’s Decision.

21.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

22.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.