|
HCAL 1573/2022
[2026] HKCFI 2918
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1573 of 2022
|
BETWEEN
|
| |
Siti Aminah |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/ |
Putative |
| |
Non-refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Connie Lee:
1. Form 86 be amended, naming only the Torture Claims Appeal Board/Non refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.
2. Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 2 September 2022 be refused.
3. The application herein for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 28 December 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 2 September 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 27 July 2021 (the “Director’s Decision”), which had rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (“USM”).
2. The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.
3. The Applicant attended the oral hearing but did not have anything to add.
Discussion
4. The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap 4A.
5. In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[2]
6. First, the delay in question is around 26 days. However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in her affirmation. When asked why the Leave Application was filed late, she simply said she was not aware of that.
7. Second, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success.[3]
8. Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[4] In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in her supporting affirmation. As matter stands, the Applicant has failed to identify any valid or effective public law grounds.[5]
9. In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.
10. The primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of Immigration).[6]
11. The Board was acutely aware of the Applicant’s claim that she would be harmed or killed by her creditor and/or his men had she been sent back to Indonesia because she could not repay the loan. It had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found that (1) the Applicant had failed to establish that there were substantial grounds for believing that she would be subjected to torture and/or otherwise ill-treatment that attained a minimum level of severity, if she be sent back to Indonesia; (2) the loan dispute was purely a private one and there was no evidence that the creditor had intention to harm or kill her or her family members; (3) the COI indicated that the Indonesia government has been combating corruption and there was no evidence that the police or government officials there would not have done anything had they known about her situation; and (4) the Applicant has options to relocate elsewhere within Indonesia.
12. There is simply nothing to indicate the Board had failed to take into account any relevant matters. I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.
13. Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing her to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.
Conclusion
14. I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the Leave Application.
Dated the 29th day of May 2026
| |
( Klein Tse )
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 29 May 2026
Siti Aminah
Applicant’s ref. no:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29 May 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 18454/21/8/42/I2136
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 741/21 (formerly RBCZ 10321/21) (T4I132)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|