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

HCAL 3133/2019

[2025] HKCFI 3628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3133 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 Applicants being absent in open court;

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

1.   Leave for the 1^st Applicant to apply for Judicial Review of the Board’s 1^st Decision be refused; and

2.   Leave for the 2^nd Applicant to apply for Judicial Review be dismissed.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant, aged 40, is the mother (“the mother”) and the guardian ad litem of the 2^nd applicant, her son, aged 7 (“the son”). They lodged their non-refoulement claims with the Director of Immigration (“the Director”) who had made the decisions as follows:

(1)   Notice of Decision dated 30 January 2019, dismissing the mother’s claim (“the Director’s 1^st Decision”);

(2)   Notice of Decision dated 8 January 2020, dismissing the son’s claim (“the Director’s 2^nd Decision”).

2.The mother appealed against the Director’s 1^st Decision to the Board. Acted by his mother, the son also appealed against the Director’s 2^nd Decision to Torture Claims Appeal Board (“the Board”), which had made the following decisions:

(1)   Decision dated 4 October 2019 dismissing the mother’s appeal against the Director’s 1^st Decision (“the Board’s 1^st Decision”); and

(2)   Decision dated 6 December 2021 dismissing the son’s appeal against the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

3.The son’s claim relies on the facts of the mother.

4.In Form 86 filed by the mother on 22 October 2019, the mother joined the son as a party to her application for leave for judicial review of the Board’s 1^st Decision. By that time, the Board had not issued the Board’s 2^nd Decision. As a matter of procedure, the mother’s application cannot join her son for leave for judicial review of the Board’s 2^nd Decision, which had not been issued by the Board at the time of filing of Form 86.

5.The applicants requested oral hearing. However, they were absent at the hearing on 16 July 2025.

6.In the circumstances, this Court will dismiss the son’s application as the cause of action has not arisen on the date of Form 86. The son is now 7 years old. He may have to take out another application with her mother acting as his guardian ad litem for leave to apply for judicial review of the Board’s 2^nd Decision. The Court will only deal with the mother’s application here.

7.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant                                                                                       

8.The 1^st applicant is a national of Indonesia.  She came to Hong Kong to work as a domestic helper on 30 June 2016. Her contract terminated on 20 July 2018, but she did not depart Hong Kong as required and had overstayed since 31 July 2018. She surrendered to the Immigration Department on 2 August 2018. A removal order was issued against her on 27 September 2018.  

9.According to the 1^st applicant, she and her husband were separated in Indonesia. Her husband had remarried. She came to Hong Kong to work as a domestic helper. She fell in love with an Indonesian man in Hong Kong. In February 2018, she found that she was pregnant. She told her boyfriend, who deserted her and was not to be seen again. She told her father about it. Her father was very angry because the baby would be born out of wedlock, which would bring disgrace to the family. Her father said that he would not accept her and she would die if she came back to Indonesia. Her elder brother said he would kill her if she returned to Indonesia. On 25 October 2019, she gave birth to the 2^nd applicant. She dared not return to Indonesia.

10.She lodged a non-refoulement claim with the Director on the basis that, if refouled, she will be harmed or killed by her father and her elder because she had given birth to the son out of wedlock.

11.By Notice of Decision dated 30 January 2019 (“the Director’s 1^st Decision”), the Director dismissed her claim.

The Director’s Decisions

12.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”).

13.By way of the Director’s 1^st Decision, the Director dismissed the mother’s claim for the reasons that the low intensity and frequency of ill-treatment by her father and brother in the past indicated a low future risk upon her return to Indonesia; that state protection would be available, and internal relocation would be viable. [12]-[15]

The Board’s Decision

14.The 1^st applicant appealed the Director’s 1^st Decision to the Board.  On 19 July 2019, the Board conducted an oral hearing for her appeal. The 1^st applicant had given oral evidence and answered the Board’s questions.

15.Having considered the evidence, the Board found that the threats from her father and elder brother were mere verbal threats; that internal relocation such as to Jakarta would be viable and that there was no evidence to show that she would face harm amounting to persecution, torture, CIDTP or deprivation of life. [22]-[24]

16.By the Board’s 1^st Decision, it dismissed the 1^st applicant’s appeal and confirmed the Director’s 1^st decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003133_2019_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review

17.The 1^st applicant filed Form 86 on 22 October 2019 for leave to apply for judicial review of the Board’s 1^st Decision, joining her son as a party. However, for the reasons above, the Court dismiss the son’s application.

18.In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has raised no specific ground to challenge the Board’s Decisions.

DISCUSSION

19.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).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.The 1^st applicant has failed to show that there is realistic prospect of success in her proposed judicial review.

DISPOSITION

22.I refuse to grant leave to the 1^st applicant to apply for judicial review of the Board’s 1^st Decision.

23.The application is dismissed.

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