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HCAL 128/2021
[2025] HKCFI 5409
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 128 of 2021
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Mustaufiyah |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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. The application for leave to apply for Judicial Review be dismissed
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 23 October 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 23 January 2021. Her application was filed on 4 February 2021, which is late for 12 days. This issue will be dealt with below.
2. The applicant did not request an oral hearing.
3. 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
4. The applicant is a national of Indonesia. She worked as a domestic helper in Hong Kong. Her contract was terminated, but she did not depart and overstayed since 17 August 2019. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her father because she had given birth to her child, Sophia, out of wedlock in Hong Kong. Details of her story are set out in the Board’s Decision. See hyperlink.
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000128_2021_files/the_Board's_Decision.pdf
The Director’s Decision
5. 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”).
6. By way of Notice of Decision dated 11 May 2020 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
7. The applicant appealed the Director’s Decision to the Board. On 28 September 2020, the Board conducted an oral hearing. The applicant had given oral evidence and answered the Board’s questions.
8. Having considered the applicant’s evidence, the Board made the findings below.
(1) There was nothing that suggested that her father had the intention to kill her. [47]
(2) There was no evidence that the Indonesian authorities will not render protection to her if she returns to Indonesai. [52]
(3) Relocation to cities such as Semarang, Jakarta or Surabaya is viable. [55]
(4) The father of her child will help her; alternatively, there are institutions such as Pekka can assist her. [55]
9. For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 4 February 2021 for leave to apply for judicial review of the Board’s Decision.
11. The applicant did not give any reasons for her delay. She has raised the grounds below to challenge the Board’s Decision.
(1) Procedural impropriety: failing to consider right to life issue; failing to conduct sufficient inquiry into the relevant country of origin conditions; and failing to give sufficient reasons.
(2) Error/misdirection in law: failing to take into account psychological strain and threats to her personally.
(3) No sufficient reason to support that she will not be at risk of being tortured.
DISCUSSION
12. As mentioned in paragraph 1, 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.
13. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
16. The grounds under paragraph 11 are bare assertions without any evidence in support.[2] According to the Board’s Decision, the applicant had not raised psychological issues when she appeared before the Board.
17. The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 24th day of November 2025
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( Alfred Chan )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 24/11/2025
Mustaufiyah
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24/11/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16935/20/5/24/I1837
Director of Immigration
Putative Interested Party’s ref. no.: RBCL/33/20(CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Delay in applying for relief (O. 53, r. 4)
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
[2] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
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