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HCAL 3761/2019
[2025] HKCFI 5431
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3761 OF 2019
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BETWEEN
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Sri Utami |
1st Applicant |
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Md Monju Tania Adiba Shakila Abqoriah |
2nd Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The 2nd applicant’s application for leave to apply for judicial review be dismissed.
3. Leave granted to the 1st applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 5 December 2019.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 17 November 2019, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 5 December 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003761_2019_files/the_Board's_Decision.pdf
2. In fact, the Board’s Decision only refused the 1st applicant’s late filing of her Notice of Appeal/Petition (“NoA”) against the decision of the Director of Immigration (“the Director”) dated 16 January 2019 (“the Director’s Decision”). It did not include its assessment on the 2nd applicant’s non-refoulement claim or its related appeal/petition at all.
3. The 1st applicant is the 2nd applicant’s mother. The 1st applicant made an appeal/petition to the Board on the 2nd applicant’s behalf after the Director rejected the 2nd applicant’s non-refoulement claim by his decision dated 20 June 2019. The Board dealt with the 2nd applicant’s appeal/petition separately by its another decision dated 16 May 2022.
4. Thus, the Board’s decision in respect of the 2nd applicant’s appeal/petition (made on 16 May 2022) cannot be the subject matter of the Leave Application (which was made on 17 December 2019), as such a decision was not even in existence then.
5. In other words, the 2nd applicant should not be a party to the Leave Application, and she should make another separate application after 16 May 2022. The 2nd applicant’s application for leave to apply for judicial review is therefore dismissed. This court will only deal with the 1st applicant’s application in respect of the Board’s Decision.
Amendments
6. In Form 86, the applicants named the Board and “Non refulement Claims Petition Office” as both the putative respondent and the putative interested party, when only the Board should be the putative respondent and the Director should be the putative interested party.
7. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a party at all.
8. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the name of the putative interested party to “Director of Immigration”.
The applicants’ case
9. It is not necessary for this court to discuss the details of the 1st applicant’s non-refoulement claim here as the Leave Application is only about her challenge on the Board’s Decision in refusing her application for late filing of the NoA.
Oral hearing
10. The applicants requested for an oral hearing of the Leave Application. However, they were absent at the hearing on 16 September 2025.
11. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
12. Thus, this court will proceed to consider the merits of the Leave Application in respect of the 1st applicant’s case based on the written materials before this court.
Grounds for judicial review
13. The 1st applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
14. However, the 1st applicant did not advance any grounds for the intended judicial review in Form 86, nor in her supporting affirmation dated 17 December 2019. She merely stated in the affirmation that she was very scared to go back to her country because the group party PDI asked her to sell drugs in Indonesia but she did not want to. She was scared that they would kill her and her baby if they were refouled to Indonesia.
Discussion
15. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
16. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the 1st applicant for the intended judicial review.
17. It is clear from paragraph 15 of the Board’s Decision that the Board had not given detailed consideration to the merits of the 1st applicant’s appeal/petition.
18. In concluding that there was no basis on which it could exercise the statutory discretion to extend time for the 1st applicant to file her NoA, the Board only took into consideration the 1st applicant’s “serious” and “significant” delay, which in fact was just 38 days, and the lack of any cogent explanation for that delay.
19. The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).
20. In other words, in failing to consider the merits of the 1st applicant’s appeal/petition, the Board did not take account of other relevant matters of fact within its knowledge as required by section 37ZT(2)(b). The Board had therefore committed an error of law in the Board’s Decision.
21. This error of law alone is a sufficient reason for the 1st applicant’s intended judicial review to be reasonably arguable.
22. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the 1st applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the 1st applicant to proceed with the intended judicial review.
Conclusion
23. For reasons aforesaid, leave is granted for the 1st applicant to apply for judicial review in respect of the Board’s Decision. The 2nd applicant’s application for leave to apply for judicial review is dismissed.
Dated the 11th day of November 2025
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( Irene LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 11 November 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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:
11 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15671/19/3/36/I1656
USM 16046/19/7/12/I1716
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3956/18
(formerly as RBCZ 10371/18)
QA T/C 316/19
(formerly RBCZ 10183/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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