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

HCAL 1841/2025

[2026] HKCFI 4982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1841 of 2025

BETWEEN

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 absent in open court;

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

1.  Leave for the Applicants to apply for Judicial Review be refused; and

2.  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 2nd Applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her son (“the son”). They are illegal immigrants. The mother gave birth to her son on 13 April 2024 in Hong Kong.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 31 July 2025 of the Torture Claims Appeal Board (“the Board’s Decision”) dismissing the Director’s Decision as mentioned below. Their joint application relies upon the facts of the mother.

3.The applicants did not request an oral hearing.

4.The Board’s Decision was written in Chinese whereas this Form CALL-1 is written in English. This is because the mother has filed her affirmation in support of this application in English.

The applicants

5.The applicants are nationals of Indonesia.

6.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the mother’s creditor because she was unable to repay her loan.

7.Details of the facts are set out in the Board’s Decision. See https://legalref.judiciary.hk/doc/judg/html/vetted/other/ch/2025/HCAL001841_2025_files/the_Board's_Decision.pdf

The Director’s Decision

8.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”).

9.By way of the Director’s Decision dated 7 March 2024 (“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

10.The applicants appealed the Director’s Decision to the Board. On 29 April 2025, the Board conducted an oral hearing for their appeals. Before the hearing, the Board had requested the Duty Lawyer Scheme to provide legal aid to the son. The Duty Lawyer Scheme refused to accede to its request. The mother attended the hearing. She had given evidence and answered the Board’s questions.

11.The Board expressly bore in mind the guidelines relating to minor as the Court of Appeal decided in Re Jasvir Singh and Others [2021] HKCA 53 and considered the minor’s issues separately from the mother’s claim. Having considered the evidence, the Board found that the mother’s evidence was not the truth as her evidence was inconsistent [47] & [48]. The Board rejected her evidence that she had borrowed money from the creditor or the creditor had threatened her [55] & [56]. In relation to the son, the Board found that his father is a national of Indonesia; that the son will not be ill-treated if he returns to Indonesia with his mother; that there is no medical condition that requires special care; and the creditor has no idea of the son [72]. The Board further found that the son will be recognized as an Indonesian citizen if he returns to Indonesia with his mother [76] and he will not be subjected to any of the applicable risks [79]-[82]. Besides, the Board found that internal relocation is viable for the applicants. [179]

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

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 18 August 2025 for leave to apply for judicial review of the Board’s Decision.

14.In support of their application, the mother did not raise any ground to challenge the Board’s Decision. She has attached a copy of the Board’s Decision to her affirmation.

DISCUSSION

15.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).

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

17.It is clear that the Board had separate consideration of the son’s case independently and together with the mother’s case.

18.The mother has not raised any concern of potential non-refoulement grounds relating to the son, but which had not been advanced to the Board or considered by it because of lack of legal representation on their behalf before the Board.  Therefore, I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

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

Dated the 9^th day of October 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