NANI ISMIATI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  Leave to apply for Judicial Review 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 daughter’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The 1^st applicant is the mother (“the mother”) acting as the guardian ad litem of the 2^nd applicant, her daughter (“the daughter”), born on 5 September 2024 in Hong Kong.  They are illegal immigrants.

2.  The daughter applies for leave to apply for judicial review of the Decision dated 28 November 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application relies upon the facts of the mother.

3.  The mother has lodged her non-refoulement claim herself and her claim was refused by the Director by Notice of Decision dated 13 April 2018.  She appealed to the Board, which dismissed her appeal by Decision dated 4 March 2019 (“the Board’s decision”).  She did not apply for judicial review of the Board’s decision.  The mother’s application is HCAL 798 of 2019.

4.  The applicant did not ask for a hearing.

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/Pakistan, adopting the mother’s nationality or her father’s nationality.  The mother stated that she is in grave fear that the daughter would be subjected to ill-treatment or even being killed by her ex‑husband and the family members of the daughter’s father, a Pakistani in Hong Kong.  Her ex-husband will kill her because of her extra-marital affairs, giving birth to the daughter.  The father’s enemy will kill the father because he had a land dispute and political dispute with his enemy.

7.  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/HCAL002742_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

8.  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”).

9.  By way of Notice of Decision dated 22 August 2025 (“the Director’s Decision”), the Director dismissed her claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 15 October 2025, the Board conducted an oral hearing for her appeal.  The mother had given evidence and answered the Board’s questions.

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

(1)   The mother is no longer in fear of her ex-husband if she returns to Indonesia with the daughter. [66]

(2)   The Board did not believe the mother’s story that the loan sharks had kidnapped her eldest daughter.  She had already divorced her former husband and is no longer obliged to repay his debt. [67]

(3)   The Board had also considered the daughter’s father’s case assessed by a Board of another adjudicator, who found the father had fabricated his claim. The Board agreed with the other adjudicator of the Board. [70]-[71]

(4)   The Board found that there will be no real chance that the daughter will be harmed if she returns to Indonesia with her mother; state protection is open to her and internal relocation is viable. [84]

(5)   The daughter may adopt her mother’s nationality or her father’s nationality. [87]-[88]

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 11 December 2025 for leave to apply for judicial review of the Board’s Decision.

14.  In support of her application, the mother has raised no specific ground to challenge the Board’s Decision other than that she found the Board’s Decision unsatisfactory.

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 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).

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

17.  It is apparent that the applicant was not legally represented before the Board.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the daughter, and to have separate consideration of the child specific issues as the daughter is more venerable to the applicable risks than the mother.

18.  The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

19.  The Board had considered the daughter’s situation separately.

20.  There is no factual basis in support of the daughter’s claim as the Board found that she will not be subjected to any real harm if she returns to Indonesia.  I consider that the Board had administered advanced standards of fairness in the assessment and there was no child specific issue, which was not presented to the Board for consideration because there was no legal representation for her.

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

DISPOSITION

22.  I refuse to grant leave to the daughter to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

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

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