SUPARDI ENDANG SUPRIYANI BT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1113/2022

[2026] HKCFI 2347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1113 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 19 October 2022 (“Form 86”), the Applicant applied for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 11 August 2022 (“Board’s Decision”)[1], dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 January 2022 (“Director’s Decision”).

2.  The Applicant was absent from the oral hearing for the Leave Application on 3 March 2026, and I proceed to consider the merits of the Leave Application based on the documents available: Re Abdus Salam [2019] HKCA 1091.

Discussion

3.  The Leave Application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It suffices for me to state my observations after considering the Board’s Decision and the Applicant’s materials adduced.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

4.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Although the Court will adopt an enhanced standard in scrutinizing the Board’s Decision due to the seriousness of the issue, it should not usurp the role of the Board.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22/12/2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

6.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the Board’s Decision in the Form 86 nor in her affirmation in support.

7.  The Board refused to entertain the Applicant’s appeal on the basis that her Notice of Appeal was filed out of time.  Under section 37ZT(1) of the Immigration Ordinance (Cap 115), the Applicant’s application before the Board was required to be filed after the expiration of a 14-day appeal period.  The Notice of Decision was dated 13 January 2022, and the Notice of Appeal was dated 7 February 2022.  A revised and signed Notice of Appeal was filed on 14 February 2022.   

8.  Under section 37ZT(2), the Board may only take account of the statement of reasons stated in the application for the late filing of the notice of appeal and the evidence relied on in support of the reasons.

9.  According to the Notice of Appeal, the only statement put forward by the Applicant was that (a) she did not feel well; (b) her father passed away; (c) her mother was also sick who ‘must be taken care in hospital whilst [she] does not have many siblings’. 

10.  The Board noted that the Applicant’s father had already passed away at the time of her NCF dated 20 December 2021.  Her two younger sisters and younger brother were respectively aged 37, 31 and 29 at the time of her NCF, who were in Indonesia with her family members.  The Applicant did not adduce any medical evidence in support of her alleged illness.

11.  The Board duly considered that the Director’s Decision was sent to the Applicant on 13 January 2022 through Duty Lawyer Service.  Under section 37ZV(2)(b) of the Immigration Ordinance, the Duty Lawyer Service is conclusively presumed to have received the Director’s Decision on 15 January 2022.  The Applicant failed to show that she had exercised all due diligence to file the Notice of Appeal within time, but failed to do so because of circumstances beyond her control: section 37ZT(3) of Immigration Ordinance.

12.  Having considered the Board’s Decision with rigorous examination and anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality.  The Board’s Decision was comprehensive with adequate reasons provided.  There is also nothing to indicate that the Board failed to take into account any relevant matters, or otherwise reached a decision that it was not entitled to make.  Accordingly, there is no reasonably arguable ground for judicial review with any realistic prospect of success.

Conclusion

13.  By reason of the above, 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