Siti Mujay Anah Acting As Next Friend of Prabhdeep Gursirat Kaur Sohi Azra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2610/2025

[2026] HKCFI 2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2610 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.   The extension of time for the application for Judicial Review be refused;

2.   Leave to apply for Judicial Review be dismissed; and

3.   Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st named is the mother (“the mother”) acting as the next friend of the 2^nd applicant, her daughter (“the daughter”) of two and a half years old.  They are illegal immigrants.  The mother gave birth to her daughter in Hong Kong.

2.The applicant applies for leave to apply for judicial review of the Decision dated 3 July 2024 of the Torture Claims Appeal Board (“the Board’s Decision”).  Her application relies upon the facts of the mother.  However, the applicant’s application is late.  Her application shall not be later than 3 months from the date of the Board’s Decision, which expired on 17 July 2024.  Her application was filed on 25 November 2025, which is late for more than 1 year and 4 months.  This issue will be dealt with below.

3.The mother has also lodged a non-refoulement claim with the Director.  The Director refused her claim.  She appealed to the Torture Claims Appeal Board (“the Board”), which dismissed her appeal.  She applied to this Court for leave for judicial review of the Board’s decision in action HCAL 2578 of 2019.  This Court dismissed her application.  She has already appealed to the Court of Appeal and is waiting for the Court of Appeal’s decision.

4.The mother and the applicant appeared before the Court on 23 March 2026.

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 applicant                                                                                       

6.The applicant is a national of Indonesia.

7.The applicant lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by a loan shark because she was unable to settle a loan incurred by her parents, thereby subjecting her to the applicable risks.

8.Details of the facts are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002610_2025_files/the_Board's_Decision.pdf

The Director’s Decision

9.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”).

10.By way of Notice of Decision dated 21 December 2023 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 27 March 2024, the Board conducted an oral hearing for the appeal.  The mother had given evidence and answered the Board’s questions.

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

(1)   State protection will be available to the mother and the applicant. [49]

(2)   The assertion of discrimination by the Indonesian society is the mother’s subjective speculation.  On the contrary, Indonesia is a liberal country accepting people of different religions beliefs. [50]

(3)   That the applicant may not be able to obtain her identification document if she returns to Indonesia is also the mother’s subjective speculation without any evidence in support. [51]

(4)   There was no evidence to show that the applicant will be subjected to any of the applicable risks if she returns to Indonesia.

(5)   Internal relocation is viable. [58]

13.For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

14.The applicants filed Form 86 on 25 November 2025 for leave to apply for judicial review of the Board’s Decision.

15.In support of their application, the mother has raised the grounds below to challenge the Board’s Decision.

(1)   The Board’s Decision is in Chinese, which the mother does not understand, therefore there was a delay in the application.

(2)   She did not have interpretation service for her appeal or for this application for leave for judicial review of the Board’s Decision.

(3)   She did not have legal assistance in her appeal before the Board.

(4)   Before the Board, she was not provided with an interpreter.  She did not understand the proceedings.

(5)   The adjudicator relied on speculative assumptions regarding the risk of harm in the assessment of the evidence.

(6)   The Board failed to consider whether the Indonesian government will provide adequate protection for the applicant.

DISCUSSION

16.As mentioned in paragraph 2, 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, inter alia, the prospect of the intended appeal.  I shall consider the merits of the applicant’s case.

17.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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the mother said that before the Board, she was provided an interpreter; that she had given her full story to the Board for its consideration and that she understood the Board’s Decision.  When asked if she had anything which she had not submitted to the Board specifically on the issues concerning her daughter, she confirmed that she had made full submissions on behalf of the daughter to the Board and she had nothing more to add.

19.Those reasons under paragraphs 15(5) and 15(6) are the mother’s bare assertions without any evidence in support or they are simply not true.  She was not entitled to free legal assistance at all stages of the proceedings[1]. Those reasons do not constitute valid reasons to challenge the Board’s Decision.

20.The applicant therefore fails to show that there is any realistic prospect of success in the proposed judicial review.

DISPOSITION

21.I refuse to extend time to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss the application.

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

Dated the 15^th day of April 2026

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