PITRIANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 230 /2024, [2026] HKCA 368

On appeal from [2024] HKCFI 2406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1999 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 30 September 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  On 22 October 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 21 November 2024[2]. The applicant filed a renewed application for extension of time to appeal with the Court of Appeal on the same day.

3.  The applicant is a national of Indonesia.  She last arrived in Hong Kong as a visitor on 11 October 2014 and subsequently overstayed.  She surrendered to the Immigration Department on 12 July 2017.  She lodged a non-refoulement claim on 29 March 2018 on the basis that, if refouled, she would be harmed or killed by her former husband.

The decisions of the Director and the Board

4.  By a Notice of Decision dated 29 October 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

5.  The applicant appealed against the Director’s decision to the Board.  She attended the hearing before the Board on 2 April 2019.  The Board found that the applicant’s evidence was fundamentally unreliable as the evidence concerning certain critical aspects has been inconsistent and the applicant was unable to provide plausible or satisfactory explanation for the inconsistencies.  The Board did not accept that the applicant would face any form of harm upon return to her home country.  The Board also did not accept there is a consistent pattern of gross, flagrant or mass violations of human rights in Indonesia.  

6.  The applicant further made reference to being the mother of a child who is a Hong Kong Permanent Resident (born in September 2017) and her spousal relationship with the child’s father, also a Hong Kong Permanent Resident.  The Board noted the immigration reservation in section 11 of the Hong Kong Bill of Rights Ordinance, which effectively precludes persons not having a right to enter and remain in Hong Kong from relying on the rights under the Convention on the Rights of the Child and the Hong Kong Bill of Rights that are not absolute and non-derogable, including Article 19 and Article 20 of the Hong Kong Bill of Rights, in the context of a decision relating to entry into, stay in or departure from Hong Kong.  The best interests of the children principle is not applicable in the immigration context and any legitimate expectation has to give way to contrary statutory provisions. The Convention on the Rights of the Child has not been made into local law and would not confer any rights or impose any obligations on individuals in Hong Kong.

7.  In light of the above findings, the Board decided that the applicant’s claims are not made out on any of the applicable grounds and confirmed the Director’s decision on 17 June 2019.

The intended judicial review

8.  On 15 July 2019, the applicant filed a Form 86 and an affirmation in HCAL 1999/2019 to seek leave to bring judicial review against the Board’s decision.  She did not put forward any grounds for her intended challenge.

The judge’s decision

9.  The applicant attended the hearing before DHCJ K W Lung on 28 August 2024.  The judge found that the Board was entitled to form its views after considering the evidence and the applicant has raised no valid ground to challenge the Board’s decision.  The judge further found that the applicant failed to show any realistic prospect of success in her proposed judicial review.  Thus, the judge dismissed the leave application on 30 September 2024.

Grounds of appeal

10.  In her written submissions, the applicant reiterated the problems she faced in Indonesia and submitted that the lives of herself and her children would be in danger because of her ex-husband if they return to Indonesia.  She further submitted that she has married her daughter’s father and has become pregnant with her second child so she wants to stay with her family in Hong Kong.   

Analysis

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 30 September 2024 and the applicant was late by 8 days when she took out the summons at the court below on 22 October 2024.  The applicant explained that she did not receive the court’s decision.  Even if the court is minded to accept her explanation in view of the short delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  In the present application, the applicant failed to identify any errors of law, procedural unfairness or irrationality in the decision of the Board.  She also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Therefore, there is no prospect of success in the intended appeal.

15.  For the above reasons, we refuse to grant extension of time to appeal against the judge’s decision of 30 September 2024 and dismiss the summons filed on 21 November 2024.

[1] [2024] HKCFI 2406

[2] [2024] HKCFI 3051

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] Re Gurung Min Bahadur [2018] HKCA 226 §10