Nur Widia and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2823/2019

[2025] HKCFI 3692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2823 of 2019

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 Applicants in open court;

Order by Deputy High Court Judge Levy:  

1.  A1’s application for leave to apply for judicial review be dismissed.

2.  Leave is granted to A2 to apply for judicial review of the Board’s decision, and direct that A2 shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.There are two applicants in these proceedings, the 1^st applicant (“A1”) and the 2^nd applicant (“A2”). A2 is the daughter of A1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 September 2019, A1 for herself and on behalf of A2 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 30 August 2019 (“Board’s Decision”) dismissing the appeal by A1 and A2 against a decision of the Director of Immigration (“Director”) dated 19 February 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.In the Form 86, the applicants named the Director and the Board as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) : see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57]. As A2 was not legally represented, the court had written to A1 to remind her to approach the Legal Aid Department or to engage a private lawyer to represent A2.

4.At the scheduled a hearing on 29 July 2025, the applicants attended in person. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra).

Background

5.The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

6.A1 is an Indonesian national of Javanese ethnicity, and was formerly employed as a foreign domestic helper in Hong Kong until 18 May 2017 when her employment contract was prematurely terminated. She last returned to Hong Kong on 10 December 2017, when she was permitted to remain as a visitor until 9 January 2018. However, she did not depart, and had overstayed. A1 surrendered herself to the Immigration Department on 4 June 2017 and raised her non-refoulement claim on 19 June 2018.

7.A2 was born in Hong Kong on 20 July 2018. The identity of A2’s father is unknown. A1 subsequently raised a non-refoulement claim on behalf of A2 in the same year.

8.The claims by the applicants were jointly considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The basis of the claims was that A1 feared both A1 and A2 would be harmed or killed by the family, particularly A1’s abusive and strict elder brother, who had physically and emotionally abused her from childhood, blamed her for their father’s death within days of learning of her pregnancy in January 2018, and threatened to kill her upon her return to Indonesia.

9.The Board and the Director did not separately assess A2’s claim, but instead treated it as part of A1’s claim.

10.The factual background was set out at her answer to Question 35 in her non-refoulement claim form, and was summarized at [7.1] – [7.21] of the Director’s Decision.

11.In the Director’s Decision, the Director decided against the applicants’ claim on all applicable grounds. Hence, the applicants’ appeal to the Board against the Director’s Decision.

12.On 11 July 2019, the applicants attended a hearing before the Board, during which A1gave oral testimony and answered questions from the Board.

13.The Board found that A1’s factual account consisted of numerous inconsistencies and discrepancies concerning the main aspects of her evidence - her Islamic marriage to and divorce from her ex-husband; and her abusive brother. The Board found that A1’s evidence not credible and rejected it as untruthful. Thus, the Board found that there was no real risk of harm. The Board also found that state protection was available and that internal relocation would be viable. The Board dismissed the applicants’ appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

14.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision‑makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

15.A1 stated in her supporting affirmation that her life was still in danger in her country.

16.At the hearing, this court asked A1 whether she had any further grounds she wished to submit in support of the Leave Application. She submitted that she was not able to go back as she wanted A2 to study in Hong Kong. She then repeated her case that was already before the Board.

17.This court separately asked A1 if she wanted to say anything on behalf of A2. A1 repeated that if A2 stayed in Hong Kong, she would receive education and medical care here. She also stated that she had already lost contact with A2’s father.

Regarding A1

18.In the present case, A1’s written grounds in support of the Leave Application are not valid grounds. Neither was A1 able to put forth any grounds to challenge the Board’s Decision. She did not say on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.The Board’s Decision was arrived at after having examined the A1’s evidence in great detail. It rejected the A1’s account after it found that the materials aspects of her claims were not credible. The Board’s findings of the absence of threat or risk, of the availability of state protection; and of the viability of internal relocation are findings of fact, which the court in a judicial review will not interfere with.

20.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above correctly identified the issues, and observed a very high standard of fairness. I find that it was perfectly open to the Board to come to its conclusion that A1 failed to discharge her burden of proving the asserted fears and risks.

21.For these reasons, I am not satisfied that A1’s Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Regarding A2

22.In the present case, the Board did not separately consider the relevant risks A2 may face if she were refouled. The following general propositions apply to the determination of a minor's non-refoulement claim by the decision-maker: Re Jasvir Singh [6], following Fabio Arlyn Timogan (supra.).

“[30] First. …(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children's claims could be dismissed without further consideration of their personal situations;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

[31] Second, when dealing with a non-represented minor's judicial review leave application seeking to challenge the Board's rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor's own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

[32]. If the court finds that it is reasonably arguable that the Board had not considered the minor's non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor's claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials , with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor's non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

[33]. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor's claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor's intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 , discussed in [57] of Fabio Arlyn Timogan.”

23.In the present case, despite having referred to the COI regarding children born out of wedlock, the Board however did not separately consider A2’s personal circumstances – that she is of mixed race and that she was born in Hong Kong without knowing identity of the father. Thus, there is arguably no valid basis to support the Board’s risk assessment in respect of A2’s refoulement to Indonesia. Thus, it is reasonably arguable that the Board has failed to apply the highest standard of fairness of making a proper investigation as to the A2’s personal circumstances.

24.Based on the principles discussed above, it is at least reasonably arguable that the Board’s Decision regarding A2 is tainted with procedural unfairness.

25.In the premises, and for all the given reasons, I am of the view that A2’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Conclusion

26.A1’s application for leave to apply for judicial review be dismissed.

27.I grant leave to A2 to apply for judicial review of the Board’s decision, and direct that A2 shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

28.Since A2 is a minor, she should be legally represented at the judicial review hearing. Hence, I direct my clerk to send a copy of this decision to the Official Solicitor as well as to the Director of Legal Aid for their necessary action.

Orders

29.A1’s application for leave to apply for judicial review be dismissed.

30.Leave is granted to A2 to apply for judicial review of the Board’s decision, and direct that A2 shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Dated the 22^nd day of August 2025

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