SRI SUNARMI ASIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 969/2021

[2026] HKCFI 2867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 969 of 2021

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;

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 9 July 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 10 September 2018 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 29 March 2017 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000969_2021_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named herself as the proposed respondent as well as the interested party. As the Board should have been the proper putative respondent and the Director the proper putative interested party, the Form 86 shall be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Indonesia, she would be harmed or killed by her two brothers and ex-boyfriend after the applicant had given birth to a son out of wed-lock and later married to a non-Muslim Chinese man in Hong Kong. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 February 2026. The applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to his updated address.

Discussion

5.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86, the applicant provided no such grounds. In the hand-written supporting affirmation, the applicant repeated the reason why it was necessary for her to remain in Hong Kong, namely the fear of harm from (i) her brothers who strongly objected to her having married to a non-Muslim man and (ii) her former boyfriend who loved her very much. She further emphasized that she needed to stay in Hong Kong to look after her husband who was visually impaired and the two younger children.

7.  Before the hearing, the applicant sent to the court a letter together with some documents. The documents included a death certificate of her husband showing that he died on 25 January 2025. There were also the birth certificates of her two younger children, and the Chinese hand-written letters from them. In the letters, the children stated that their life with the applicant was hard as she was not allowed to work in Hong Kong and hoped the relevant authority would help the applicant remain in Hong Kong.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board accepted the applicant’s account of events. However, it found that the applicant would not face a real risk of harm of any kind from her brothers or in the reasonably foreseeable future if she were refouled. This is because the applicant confirmed at the hearing before the Board that her brothers had accepted her marriage to her Hong Kong husband. Further, the Board also found that she would not face any risk of harm from her ex-boyfriend as the Board found that he had no real intention to harm her. According to the applicant’s event, her ex-boyfriend was under the supervision of the Indonesia authorities. The Board therefore believed that the claimed supervision would reduce any risk that the applicant or her family would face if the applicant were refouled. The Board further found that state protection would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. Despite the fact that the applicant provided lots of information in her supporting affirmation, it was mainly a repetition of her background and the likely hardship she and her family would face. It could not constitute viable grounds. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. Despite the great sympathy this court has for her present circumstances, I find that the applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

10.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The Leave Application was late for about 2 and ½ years.

11.  The applicant provided no written reason to explain for the delay. Hence, the court held another hearing on 24 March 2026. Before the hearing, the applicant sent a letter to the court. In it, the applicant repeated the necessity for her to remain in Hong Kong to enable her to look after her minor children. She also mentioned that the son of the previous marriage of his deceased husband had helped her family to obtain social welfare. At the hearing, the court asked the applicant to provide her reason for the delay. The applicant explained that when she received the Board’s Decision, she did not know what to do as her children were very young and her husband was sick. She did not have anyone to assist her. She also mentioned that she was detained for 2 months for overstaying around April/ May 2021.

12.  This court believes in what the applicant said about the hardship she faced in caring for her sick husband and the two young children, and is sympathetic to her circumstances. However, I do not find that her ignorance or lack of help can be accepted as good reason. Neither is the fact of her 2-month detention is excusable as she was not in custody during the time limit for the making of the leave application. Having regard to the lengthy delay, and most importantly, the lack of good prospects of success of the intended challenge, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Orders

13.  The Form 86 be amended on the court’s own motion.

14.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

15.  The applicant’s application for leave to apply for judicial review be 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