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

HCAL 549/2025

[2025] HKCFI 1479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 549 OF 2025

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 October 2023 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 5 January 2024. Her application was filed on 4 March 2015. This issue will be dealt with below.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

The applicant

3.  The applicant, aged 31, is a national of Indonesia. She came to Hong Kong to work as a domestic helper. On 24 December 2021, she resigned from her employment but she did not depart Hong Kong as she had a relationship with a Hong Kong resident and she had given birth to a child. She surrendered to the Immigration Department on 23 September 2022. She lodged her written representation for non-refoulement claim. Her reasons in support of her claim are that, if refouled, she will be harmed of killed by her parents because she had given birth to a child with a man in Hong Kong. Also, she does not want to be separate from her child in Hong Kong.

The Director’s Decision

4.  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”).

5.  By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

6.  The applicant appealed the Director’s Decision to the Board. On 4 September 2023, the Board conducted an oral hearing.

7.  Having considered the applicant’s evidence, the Board found that (i) the applicant was not a credible witness [46]; and (ii) on the credible before it, the Board did not consider that the applicant faced a real risk of Proscribed Harm from her mother if she returned to Indonesia. [47]

8.  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

9.  The applicant has filed Form 86 dated 4 March 2025 for leave to apply for judicial review of the Board’s Decision.

10.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

11.  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.

12.  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).

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

14.  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.”

15.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

16.  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

17.  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.