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

HCAL 3044/2019

[2025] HKCFI 3428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3044 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and 1st Applicant being present and 2nd applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused;

2.   The application for leave to apply for Judicial Review be dismissed; and

3.   Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant, aged 46, is the mother. The 2^nd applicant is her son, aged 9.  In the Amended Form 86, they had jointly applied for judicial review of the decisions of the Non-refoulement Claims Petition Officer, the Immigration Office, 7 December 2016.  Non-refoulement Claims Petition Office is the Torture Claims Appeal Board (“the Board”). However, there is no such document on the court’s file.  Having considered the procedural history of the case, this Court considers it appropriate to set out the Board’s Decisions and will, on its own motion, further amend Form 86.

2.The Board had issued 2 Decisions, respectively dated 3 October 2016 (“the Board’s 1^st Decision”) and 8 November 2019 (“the Board’s 2^nd Decision”).  The Board’s 1^st Decision refused the 1^st applicant to file her notice of appeal against the Director of Immigration’s Notice of Decision dated 3 August 2015 (“the Director’s 1^st Decision”) dismissing her claim on BOR 3 risk and Persecution risk because the intended filing of the notice of appeal was out of time for about 8 months. This decision is, in effect, tantamount to dismissal of the 1^st applicant’s appeal.

3.The Board’s 2^nd Decision dismissed the 2^nd applicant’s appeal against the Notice of Decision dated 3 April 2019 (“the Director’s 2^nd Decision”), which dealt with the 2^nd applicant’s claim on all applicable risks of Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk, more particularly described below.

4.In the Board’s 1^st Decision, the Board refused to extend time for the 1^st applicant to file her notice of appeal without considering the merit of her case. This is inconsistent with the Court of Appeal’s decision in Re Khan Kamal Ahmed [2019] HKCA 377, Hon Yuen JA, Lisa Wong J, 2 April 2019, in which the Court of Appeal held that the Board had to take the merits of the case into account regardless of the procedural breaches. Obviously, the Board had committed an error in law, which will render the Board’s 1^st Decision vulnerable to judicial review. However, this defect was remedied by the Board’s 2^nd Decision, in which the Board had considered the merits of the 1^st applicant’s case. It had to do so because the 2^nd applicant’s claim relies upon the facts of the 1^st applicant and the 1^st applicant had given oral evidence before the Board. Having considered the evidence, the Board had, in the Board’s 2^nd Decision, found that there was no merit in the 1^st applicant’s claim, which rendered the 2^nd applicant’s claim without any factual basis.  See Board’s Decision by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003044_2019_files/1st_Board's_Decision.pdf.

5.The applicants requested an oral hearing. The 1^st applicant appeared before the Court on 2 July 2025. She informed the Court that her son was at school.

6.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is further amended to the effect as follows:

(1)  the proposed respondent is the Board and the Director of Immigration is the interested party; and

(2)  the decisions in respect of which relief is sought are the Board’s 1^st and 2^nd Decisions.

The applicants

7.The applicants are nationals of Indonesia. The 1st applicant last arrived in Hong Kong as a domestic helper since 2010 but when her contract was prematurely terminated, she did not depart and overstayed in Hong Kong since 28 January 2011.  She was arrested by police on 20 May 2011 and in due course, the 1st applicant lodged her non-refoulement claim.

8.The 2nd applicant was born in Hong Kong on 10 May 2016. The 1^st applicant lodged a non-refoulement with the Director for the 2^nd applicant.

9.The applicants’ claim was based on their fear of being harmed or killed by the 1^st  applicant’s family members, the 1st applicant’s second husband named K, as well as the loan sharks, and that they would also face discrimination in Indonesia.

10.According to the 1^st applicant, she borrowed around 50 million Indonesian Rupiahs with K, who then absconded and nowhere to be found.  She had received threats from loan sharks but they had never assaulted her or done anything to her.

The Director’s Decisions

11.The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.By way of the Director’s Decisions, the Director assessed the applicants’ claims on all applicable grounds and dismissed their claims because their claims are unsubstantiated. Besides, state protection will be available and internal relocation is viable if they return to their country.

The Board’s Decisions

13.The applicants appealed the Director’s 1^st and 2^nd Decisions to the Board.

14.By the Board’s 1^st Decision, the Board disallowed the 1^st applicant to file her notice of appeal out of time.

15.The Board held a hearing for the 2^nd applicant’s appeal and the 1^st applicant had given oral evidence before the Board on the facts of her case. Having considered the evidence, the Board found that the 1^st applicant was not a reliable witness. [107] The Board further considered the 2^nd applicant’s case in relation to corruption in Indonesia; state protection; human rights, in particular for women on marriage and discrimination; children, in particular the law recognized a child born out of wedlock from an Indonesian mother as a citizen of Indonesia and the governmental and non-government organizations that will render assistance to mothers and children in Indonesia; and finally, internal relocation being viable for the applicants [109]-[156] . See hyperlink of Board’s 2^nd Decision https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003044_2019_files/2nd_Board's_Decision.pdf.

16.It finally found that the 2^nd applicant had not substantiated his case on any of the applicable grounds and therefore dismissed his appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review

17.The 1^st applicant filed Form 86 on 15 October 2019 for leave to apply for judicial review of the Board’s 1^st Decision. Form 86 was then amended by adding the 2^nd applicant as party. The Amended Form 86 is dated 30 September 2020.  As the Board’s 2^nd Decision is dated 8 November 2019, time for filing Form 86 expired on 8 February 2020. The Amended application is late for more than 7 months.  The Court will deal with this issue below.

18.The applicants failed to raise any valid reasons to challenge the Board’s 2^nd Decision in the 1^st applicant’s affirmation in support of their application.

DISCUSSION

19.As mentioned above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicants’ case.

20.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The 1^st applicant appeared before me.  She did not raise any valid reason to challenge the Board’s 2^nd Decision.

22.It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minors’ claims to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

23.The Court of Appeal in Re: Jasvir Singh & Ors  [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held:

“33. … 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 to0020conclude 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.”

24.The Board had considered the 2^nd applicant’s situation separately as shown in the Board’s 2^nd Decision.

25.The 1^st applicant has not raised any child specific issue, which the Board did not consider because of no legal representation for the 2^nd applicant. I am satisfied that the Board had duly considered the issues specifically applicable to the 2^nd applicant, and it found that the 2^nd applicant will not be subjected to any real risk if he returns to Indonesia with the 1^st applicant.

26.As to the 1^st applicant, for the reasons given above, in my view, the Board had considered the merits of her case in the Board’s 2^nd Decision and found that her application had no merit. The 1^st applicant failed to raise any valid reason to challenge the Board’s 2^nd Decision.

27.As to the 2^nd applicant, the 1^st applicant also failed to raise any valid reason to challenge the Board’s 2^nd Decision.

28.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

29.I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their joint application.

30.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Dated the 10^th day of September 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