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

HCAL 1202/2020

[2025] HKCFI 5604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1202 of 2020

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 Applicants being absent in open court;

1.  Leave for the applicants to apply for Judicial Review against the Board’s Decision 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 2^nd applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant is the mother (“the mother”) of the 2^nd applicant (“the son”), aged 7. This is their joint application.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 2 March 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant. Their application is late. Their application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 2 June 2020. Their application was filed on 16 June 2020, which is late for 14 days. This issue will be dealt with below.

3.  The applicants requested a hearing. However, they were absent at the hearing on 10 November 2025. I shall deal with their joint application on the papers.

4.  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 applicants

5.  The applicants are nationals of Indonesia. They are illegal immigrants. The mother was a domestic helper in Hong Kong. Her employment contract terminated, but she did not depart and surrendered to the Immigration Department in August 2018. The son was born in Hong Kong in September 2018.

6.  The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the mother’s parents because she converted from Muslim to Christianity and she had given birth to the son out of wedlock. She further claimed that her husband in Indonesia may also harm or kill her because she had an affair with the father of the son. The son’s claim relied on his mother’s claim. The mother had not submitted any other grounds specific to the son before the Board. The mother’s parents had said they disowned the mother and her husband in Indonesia had threatened that he would killed the mother and the son if they return to Indonesia.

7.  Details of the facts as the 1^st applicant alleged are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001202_2020_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 11 March 2019 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims because their claims are unsubstantiated.

The Board’s Decision

10.  The applicants appealed the Director’s Decision to the Board. On 8 July 2019, the Board conducted an oral hearing for their appeals. They were not legally represented. The mother had given oral evidence and answered the Board’s questions.

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

(1)  On the fear of the husband, the Board accepted that the husband was violent, but took the view that it was only speculative that the husband may harm the applicant or the son. [38]

(2)  The Board did not accept that her fear of the husband was a Convention Reason and it was only a private family dispute without any involvement of the state. The husband’s threat may substantiate her claim under BOR 3 risk, but it does not constitute BOR 2 risk. The Board then had to consider relocation. [39]

(3)  On the fear of the mother’s parents, the Board accepted that the mother’s parents were angry with her, but it did not accept the parents would harm or kill her of her son. [42]&[43]

(4)  The Board considered that the father’s parents will not cause any threat to the mother or her son if they return to Indonesia. [44]-[46]

(5)  The mother agreed that if she married with the son’s father, there will not be harassment or discrimination if they return to live in Indonesia. [48]

(6)  The Board accepted that the mother will face a real risk of social discrimination in Indonesia, but it will not amount to BOR 3 risk. [55]

(7)  The Board considered that the son will not face any real risk of the applicable risks from the mother’s parents, his father’s family or the Indonesian society even if the mother raises him as a Christian in Indonesia. [57]

(8)  The Board accepted that the mother faces a real risk of BOR 3 risk from the husband if the mother returns to live in her hometown. {60}

(9)  The Board found that internal relocation in cities such as Jakarta will be viable. [60]-[61]

(10)  The Board concluded that the mother and the son do not face a real risk of Proscribed Harm on any applicable grounds if they are refouled to Indonesia and relocate to live in Jakarta. [63]

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

Application for leave to apply for judicial review

13.  The applicants filed Form 86 on 16 June 2020 for leave to apply for judicial review of the Board’s Decision. The applicants did not put forth any valid ground in support of their application.

14.  In the 1^st applicant’s affidavit in support of their application, the 1^st applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

15.  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 (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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 applicants were 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, Hon Lam, Barma and Au JJA, 27 November 2020 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 Boar’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more liable to be subjected to the applicable risks than the parent.

18.  The Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 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 son’s situation separately.

20.  I am satisfied that the Board had attained advanced standards of fairness in this case and it does not appear to me that there were other child specific issues not brought to the Board’s attention because of lack of legal representation for the son.

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

DISPOSITION

22.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint 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 2^nd applicant’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