Nurhalimah Bt Rahmat Sami v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 962/2025

[2025] HKCFI 3969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 962 of 2025

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 Applicant being present in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 November 2024 of the Torture Claims Appeal Board (“the Board’s Decision”).  Her application is late.  Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 19 February 2025.  Her application was filed on 22 April 2025, which is late for more than 7 weeks.  This issue will be dealt with below.

2.The applicant requested an oral hearing.  She appeared before the court on 23 July 2025.

3.Before me, the applicant applied for withdrawal of her application.  I have enquired the reasons for her application for withdrawal.  She said that she wanted to return to her country; and although her problems remain there, she may relocation to live somewhere else.  She confirmed that she understood the consequences of her withdrawal her application; that is, she cannot apply to reinstate her claim without good reasons and she will be repatriated to Indonesia soon.

4.There being no evidence that the application is made other than out of the applicant’s free will; and there being no outstanding matter in this action, the Court accedes to the applicant’s request and dismisses the application accordingly[2].

5.What follow will demonstrate that her application has no merit even if she proceeds with her application.

The applicant

6.The applicant is a national of Indonesia.  She came to Hong Kong on 1 July 2022 to work as a domestic helper.  Her employment contract terminated, but she overstayed since 24 November 2023.  She lodged her non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband if she does not settle his loan for him and she will be harmed by her brother if she refuses to do housework for him.

7.According to the applicant, her brother had attacked her when she was in Indonesia.  He beat her with bare hands.  Her husband had threatened to kill her if she refused to settle his debt to the creditor.

The Director’s Decision

8.The Director considered the applicant’s claim 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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 24 September 2024 by remote communication, the Board conducted an oral hearing.

11.Having considered the applicant’s evidence, the Board found that the applicant was not a credible witness; that even if her evidence were accepted, she would not be subjected to serious harm upon her return; that state protection will be available and internal relocation viable if she returns to Indonesia. [9] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000962_2025_files/the_Board's_Decision.pdf.

12.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 22 April 2025 for leave to apply for judicial review of the Board’s Decision.  She submitted a statement, in which she reiterated her story.

14.The applicant did not raise any specific ground in support of her application.  Nor did she explain her late application.

DISCUSSION

15.As mentioned in paragraph 1, 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 applicant’s case.

16.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 applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, she said she would like to withdraw her application because she wanted to return to her country and she would relocate herself.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.The applicant has failed to raise any valid ground to challenge the Board’s Decision.  In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

20.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

Dated the 16^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