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HCAL 196/2023
[2026] HKCFI 2920
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 196 of 2023
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BETWEEN
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Mujiati |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 3 November 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 10 February 2023, 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 3 November 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 28 January 2022 (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 apart from confirming she wishes to apply for judicial review against the Board’s Decision and that she now has a 2-year old son whom she cannot bring back to Indonesia as her parents would not accept him.
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 7 days. The Applicant has provided for an explanation in her Form 86. She claims that she was sick and had no monthly income and required her uncle to take care of her and/or come to the High Court. From the payment advice exhibited to her supporting affirmation, it would appear that she went to the Accident and Emergency Room of Queen Elizabeth Hospital on 15 December 2022 and 16 January 2023. It would appear that she was discharged immediately upon consultation although she was referred to the social hygiene clinic for further assessment. As the Applicant has not provided further clarification or elaboration, I do not accept this is a reasonable explanation for the delay.
7. Second, in any event, 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.
9. The Applicant’s affirmation states that “they are looking for me to get married with this Javanese ethnic family with I did not agreed and they told me since long time ago if I come back to Indo[nesia] I will be forced to married to this Javanese ethnic family or they will kill me by force.” There is no explanation as to who the Applicant is referring to. More importantly, the aforesaid account was not the basis upon which she made her non-refoulement claim which was rejected by the Director of Immigration and the Board. I also note that she confirmed in her non-refoulement claim form that there was no other reason why she could not be refouled to Indonesia. As per the Applicant’s case before the Board, since September or December 2021, she had no further contact with her mother or her sister-in-law and she had no idea of the whereabouts of her mother and step-father as well as her siblings.
10. As the matter stands, the Applicant has therefore failed to identify any valid or effective public law grounds.[5]
11. 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.
12. 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]
13. The Board was acutely aware of the Applicant’s claim that she would be harmed or killed by her mother’s creditor i.e. Bambang if she be returned to Indonesia because she was the guarantor of her mother’s loan and she was unable to repay the debt of her mother. It had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found that (1) the Applicant had never been attacked by Bambang or his men and Bambang had no intention to carry out his threat at all; (2) she had failed to establish that there were substantial grounds for believing that she would be subjected to torture if she be sent back to Indonesia; and (3) internal relocation would be a viable option.
14. As mentioned, the new factual account she now mentions in her Form 86 was never mentioned before. The same did not form part of the Board’s Decision for any intended judicial review.
15. 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.
16. I should add that the Applicant’s oral assertions in relation to her latest family circumstances i.e. she now has a 2-year old boy in Hong Kong since filing the Leave Application, have no relevance to her own non-refoulement claim.[7]
17. 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
18. 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
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(Klein Tse)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 29 May 2026
Mujiati
Applicant’s ref. no:
Nil. |
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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 19957
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2473/21 (formerly RBCZ 5000284/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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