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

HCAL 3014/2019

[2026] HKCFI 380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3014 of 2019

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

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 14 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 May 2019 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 November 2017 (the “Notice”), refusing their application for non‑refoulement protection.

2.  The Applicants had requested an oral hearing.  However, before their leave application came to be processed, they had been removed from Hong Kong.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered their application may be justly determined on paper without an oral hearing.

Filing out of time

3.  An application for judicial review can only be made with leave granted pursuant to section 21K(3) of the High Court Ordinance and Order 53, rule 3(1) of the Rules of the High Court (“RHC”).  Order 53, rule 4(1) provides that such leave application must be made promptly and in any event “within three months from the date when grounds for the application first arose.”  This leave application was filed five months and eight days after the date of the Decision sought to be reviewed.  It was filed two months and eight days out of time.  In H and Director of Immigration  and AH and Director of Immigration , the Court of Final Appeal held that where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. 

4.  In AW and Director of Immigration and William Lam , the Court of Appeal held that the following factors are relevant in determining whether good reason is shown for extending the period to apply for judicial review: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung , per Litton PJ. 

5.  The delay in this case is not so substantial that leave may be refused on the ground of delay alone without considering the merits of the substantive application.  As the Applicant had no tendered any explanation for the delay and did not attend the oral hearing to give an explanation, the Court took the extra caution of assessing the merit of her leave application for the dual purpose of determining whether to grant extension of time to file the leave application and whether to grant leave to apply for judicial review, if extension of time was granted.

Background

6.  The Applicants were Indonesian nationals.  The 1^st Applicant is the mother of the 2^nd Applicant.  She was last permitted to remain for employment as a domestic helper until 2 May 2011.  Her employment was prematurely terminated and she overstayed.  She was arrested by the police on 11 December 2020 and was referred to the Immigration Department on the next day.  On 25 December 2010 and 25 September 2012, she made two torture claims (the “Torture Claims”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for herself and the 2^nd Applicant respectively.  On 27 November 2012, their applications were rejected by the Director.  They did not appeal.  That decision became final.

7.  On 30 January 2014, the Applicants made a non-refoulement claim under the Unified Screening Mechanism (the “USM”).  In due course, their non-refoulement claim was assessed on all three remaining applicable grounds under the USM, namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. Their application was rejected by the Director’s Notice.  Their appeal against the Notice was dismissed by the Board’s Decision.  They now apply for leave to apply for judicial review of that Decision.  

The Applicant’s case

8.  The following account of the Applicants’ case is mainly based on the information in the torture claim forms (the “TCF”) and non-refoulement claim forms (the “NCF”) prepared by them with legal assistance and the record of their screening interview (the “ROI”) in the presence of their lawyer.  In gist, the Applicants claim they will be harmed or killed by 1^st Applicant’s parents and villagers, if returned to Indonesia, because the 2^nd Applicant was born out of wedlock.

9.  The 1^st Applicant, now aged 41, was born and raised in Dusun Ringiu Rejo, Kediri District, East Java, Indonesia.  Her parents and sister are living in Indonesia. She received formal education up to secondary three and had four years’ working experience.  In February 2010, she married a Pakistani man (“Faisal”) in a religious ceremony in Hong Kong.  She gave birth to the 2^nd Applicant on 7 July 2011.  

10.  The 1^st Applicant claimed that her parents became furious when she informed them about her marriage because she had not sought their consent beforehand.  They also disapproved the marriage, as Faisal was a foreigner.  Every time she called her parents, their conversation ended up in arguments.  In late 2020, when she informed her parents of her pregnancy, her father said the family would not accept her if she returned home with her baby. Her parents told her that if she chose to have her baby, she had to follow Faisal wherever he went instead of returning to Indonesia.  They maintained the same stance even after the 2^nd Applicant was born.

11.  The 1^st Applicant also worried that her fellow villagers would disapprove of her giving birth to a child out of wedlock, and would subject her to violence and banish her from the village. She claimed to have witnessed it happening to someone in a similar situation.

12.  The 1^st Applicant thought the Indonesian authorities and police could not protect her and her son because they are corrupt.  She does not believe internal relocation would be viable, as she does not have the financial resources, and people will find out she is a single mother.

The finding of the Board

13.  The 1^st Applicant testified before the Board.  She told the Board that her family no longer bore her any animosity and stood willing to provide her and her children with necessary support. They also accepted that she was married to Faisal under Islamic rites, and that the 2^nd Applicant was not born out of wedlock.  As such, the Board concluded that with her family support, any potential animosity from fellow villagers due to suspicion that she had a child or children born out of wedlock would be capable of resolution without the matter being escalated to the village level.

14.  However, she raised for the first time that she had been married in Indonesia in 2003, had a son and was divorced in 2015.  She claimed she is afraid of being harmed or killed by her ex‑husband in Indonesia for failing to provide money for him to buy an expensive toy for her son. She said her marital status with Faisal was not clear because she was not legally divorced when she married Faisal.  She did not have the documentary evidence to prove that she was divorced when filing the TCF and NCF.  While accepting she had been married and had a child in Indonesia, the Board had serious concerns with the credibility of her claimed fear of harm from her ex‑husband.  The Board was of the view that if she had a genuine claim involving a death threat from ex-husband, she would have raised that claim at a much earlier time and would not have deliberately withheld it in all of her dealings with the authorities until the hearing before the Board. In addition, the Board found her claim inherently implausible.  The Board hence reached the conclusion that there are no substantial grounds for believing there is a real risk that the Applicants will be harmed or killed by the 1^st Applicant’s parents, villagers and ex-husband upon their return to Indonesia.  Hence, it dismissed their appeal against the Director’s decision in the Notice.

Legal principles applicable to judicial review

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

16.  In the Form 86, the Applicants did not advance any grounds of judicial review.  In their supporting affirmation, they reiterated that the Board disregarded their dangerous situation.  In effect, they are seeking to challenge the Board’s finding of fact that they had failed to prove that they would face real harm or real risk of harm if returned to their home country.  For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully, tested it against common sense and inherent probability and gave reasons for its finding.  At the hearing before the Board, the Applicant changed the basis of her claim.  She said she would not be at risk of harm from her parents who accepted her marriage to Faisal and from the villagers.  She claimed a new risk of harm from her ex-husband.  The Board did not accept her evidence as incredible.  It gave full reasons for its finding.  It was on that basis that the Board found the Applicants had failed to establish the factual basis to support their new claim for non-refoulement protection under any of the applicable grounds under the USM.  This is a mixed finding of fact and of law.  Insofar as it is finding of the law, it is absolutely correct.  Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding is the result of error of law or procedural unfairness or is irrational.  The Court could detect no error of law in the Decision or procedural unfairness in the making of the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault.  The Applicants’ grounds are not reasonably arguable.  The proposed judicial review has no realistic prospect of success.

Conclusion

18.  For the above reasons, the Applicants’ leave application is refused.

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