Swari Nila Sahabti and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2390/2024 and
HCAL 1662/2025

(Heard together)

[2025] HKCFI 6427

HCAL 2390/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2390 of 2024

_____________

AND

HCAL 1662/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1662 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

1.  Leave for the applicants to apply for Judicial Review in HCAL 1662 of 2025 be struck out; and

2.  Leave for the applicants to apply for judicial review of the Board’s Decision in HCAL 2390 of 2024 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 child’s application a nullity.

Observations for the Applicants:

THE APPLICATIONS

HCAL 2390 of 2024

4.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her son, aged 2 (“the son”). They are illegal immigrants. They lodged non-refoulement claim with the Immigration Department. The Director rejected their claim. They appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 21 November 2024 (“the Board’s Decision”), the Board dismissed their appeal. They filed Form 86 for leave for judicial review of the Board’s Decision.

HCAL 1662 of 2025

5.Before the court determined their joint application, they made a subsequent claim with the Director of Immigration (“the Director”). By Notice of Decision dated 4 July 2025, the Director rejected their subsequent claim application (“the subsequent claim”).

6.The applicants jointly apply for leave to apply for leave for judicial review of the subsequent claim.

7.Since these 2 actions have common parties and issues, the Court ordered them to be heard together.

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

Striking out of HCAL 1662 of 2025

9.The mother appeared before this Court on 27 October 2025 and admitted that they relied on the same reasons in their previous claim in HCAL 2390 of 2024 in support of their subsequent claim action.

10.This is a clear case of duplication of the proceedings, which the Court of Appeal in Fabio Arlyn Timogan & Others v. Evan Ruth, Esq, Adjudicator of Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2020] HKCV 971, Hon Lam VP, Barma and Au JJA, 27 November 2020 at para 23 held that the action should be struck out for abuse of the process.

11.I therefore strike out the subsequent claim in HCAL 1662 of 2025.

12.I shall now deal with HCAL 2390 of 2024.

The applicants

13.The applicants are nationals of Indonesia. The mother came to Hong Kong on 30 July 2019 to work as a domestic helper. Her contract terminated, but she did not depart. She overstayed since 22 January 2023. She gave birth to the son on 21 March 2023.

14.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed by the mother’s family and the local community because she gave birth to the son out of wedlock.  

15.Details of the facts are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002390_2024_files/the_Board's_Decision.pdf

The Director’s Decision

16.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”).

17.By way of Notice of Decision dated 9 October 2023 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

18.The applicants appealed the Director’s Decision to the Board.  On 6 November 2024 and 8 November 2024, the Board conducted an oral hearing for their appeals. The applicants were represented by a duty lawyer and the Director was represented by a government counsel. The mother had given evidence and answered questions from the counsel and the adjudicator. The son’s father also appeared before the Board and had given evidence.

19.Having considered the evidence, the Board made the findings below.

(1)  The son may return to Indonesia. [36] He may also go to Bangladesh with his father. [38]

(2)  Overall, the mother’s evidence was vague, confused, changing, inconsistent and ultimately unconvincing. [84]-[85]

(3)  The mother’s evidence that she will be harmed by her family and the local community if she returns to Indonesia is speculative. [86]

(4)  The mother’ family will not abandon her if she returns to Indonesia. [86]

(5)  The Indonesian government will not discriminate children of mixed nationalities. [87]

(6)  The community in Indonesia will not discriminate the mother and the son. [89]

(7)  The son will not be harmed if he goes to Bangladesh with his father. [160]

(8)  The applicants may relocate internally in Indonesia. [162]

(9)  The applicants failed in respect of all the applicable risks.

20.It therefore dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

21.The applicants filed Form 86 on 6 December 2024 for leave to apply for judicial review of the Board’s Decision.  The applicants did not put forth any valid grounds in support of their application.

22.In the mother’s affirmation in support of their application, the mother did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

23.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).

24.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 and said that the Board’s Decision was not wrong.

25.It is apparent that the applicants were legally represented before the Board and the Board had considered the son’s situation separately. The Board had comprehensively considered the son’s situations by reference to his parents’ situations and his situations individually and collectively. The Board had not committed any error in law or procedural unfairness in it finding of the facts and its decisions are not Wednesbury unreasonable.

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

DISPOSITION

27.I strike out action HCAL 1662 of 2025.

28.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision in HCAL 2390 of 2024. Accordingly, I dismiss their joint application.

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

Dated the 30^th day of December 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