Nanik Sulastri Kuwat and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1454/2025

[2025] HKCFI 4993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1454 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 Applicants being present in open court;

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

1.  Application for leave to the 2^nd applicant to apply for judicial review of the Board’s Decision be refused; and

2.  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.This application should be considered together with another action HCAL 1365 of 2019 for the reasons below.

2.The 1^st applicant is the mother (“the mother”) and guardian ad litem of the 2^nd applicant of 2 years old (“the daughter”).  The daughter’s claim depends on the facts of the mother, who had made a non-refoulement claim together with her other 2 daughters.  The Director of Immigration (“the Director”) had refused their claim.  On appeal to the Torture Claims Appeal Board (“the Board”), the Board dismissed their appeal.  They applied for leave for judicial review of the Board’s decision.  This Court dismissed their application in HCAL 1365 of 2019 by a Judgment dated 12 September 2024 (“the Judgment”).  They did not appeal against the Judgment.

3.In HCAL 1365 of 2019, at paragraph 6, this Court recorded that the mother informed it that she had another daughter, whose application for non-refoulement claim was being processed.  The daughter’s application has now been processed as the Director had refused her application.  On appeal to the Board, the Board, by Decision dated 23 May 2025 (“the Board’s Decision”) dismissed her appeal.  This is the daughter’s application for leave for judicial review of the Board’s Decision.

4.The mother appeared before this Court on 13 October 2025.

5.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 facts in support of the application                                                

6.The daughter’s case depends on her mother’s facts, which are the same as those set out in HCAL 1365 of 2019.  It is unnecessary to repeat the same facts here. It will be suffice to state briefly that the mother was a domestic helper in Hong Kong.  She did not depart upon termination of her contract.  She surrendered to the Immigration Department and lodged her non-refoulement claim for herself and her other 2 daughters.  She had raised the reasons in support of her claim that, if refouled, she and her daughters will be harmed or killed by her creditor named Minardi due to a loan dispute and her marriage in Hong Kong had caused distress and disappointment to him.  Details of her story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001454_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

7.The Director considered the 2^nd 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”).

8.By way of the Director’s Decision dated 17 June 2024 (“the Director’s Decision”), the Director assessed the 2^nd applicant’s claim on all applicable grounds and dismissed it because it was unsubstantiated.

The Board’s Decision

9.The 2^nd applicant appealed the Director’s Decision to the Board. On 14 May 2025, the Board conducted an oral hearing for her appeal.  The applicant’s mother and father attended the hearing and answered questions from the Board.

10.Having considered the evidence, the Board found that the same reasons in HCAL 1365 of 2019 applied to the 2^nd applicant’s case.  Briefly, it did not accept that there is a real risk of harm by Minardi if she is returned to Indonesia; that internal relocation will be viable and there will be supports from the government and non-government services to assist the mother to take care of the 2^nd applicant.

11.It therefore dismissed the 2^nd applicant’s appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

12.By the mother as the guardian, the 2^nd applicant filed Form 86 on 24 June 2025 for leave to apply for judicial review of the Board’s Decision. 

13.In the mother’s affirmation in support of her daughter’s application, she had set out the reasons in 12 pages, which I shall summarize below.

(1)  The adjudicator was biased in that she had made up her mind to reject her appeal without even looking at the evidence, using blanket paragraphs for rejecting non-refoulement claims without having regard to her circumstances.

(2)  The adjudicator had not address the issues properly and wrongly made the decisions.

(3)  Her mother appealed to the Board without legal assistance or language assistance, either before the hearing, or after the Board’s Decision was issued. Her mother did not understand the contents of the Board’s Decision.

(4)  The adjudicator failed to consider the evidence of the threat of her father in Pakistan and his enemies are still in power and her mother’s threat from her ex-fiance.

(5)  The Board did not take heed of her mother’s submission that it is impossible to have justice without bribing money to the official.

(6)  The Board had placed undue weight on availability of state protection.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  The mother appeared before me. As the daughter was not legally represented before the Board, I asked her if she would like to submit any issues specific to her daughter that she wanted this Court to consider.  She answered “No” because she had put her case to the Board already.

16.The Board had considered the daughter’s case separately, taking into consideration of her parents’ situations.

17.As to the reasons under paragraph 13, (1), (2), (4), (5) and (6), they are the mother’s bare assertions without any evidence in support.  They are not valid to challenge the Board’s Decision[1]. The mother was not entitled to free legal advice at all stages of the proceedings[2]. Interpretation service is not to be provided to the applicant all the time[3]. Ground 13(3) therefore fails.

18.In my view, the Board had made a thorough consideration of the applicant’s circumstances if she is to be returned to Indonesia or to her father’s country, Pakistan.  It had discharged its duties with advanced standards of fairness and there were no other child specific issues not put before the Board for consideration because of lack of legal representation for her.

19.The daughter therefore fails to show that there is any realistic prospect of success in her proposed judicial review.

DISPOSITION

20.I refuse to grant leave to the 2^nd applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

21.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 19^th day of November 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

[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

[2] The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar  (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

[3] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”