KUSTIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1062/2025

[2025] HKCFI 4626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1062 of 2025

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 Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused; and

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 4 November 2024 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 4 February 2025. Her application was filed on 6 May 2025, which is late for more than 3 months. 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 was a domestic helper. Her employment contract terminated, but she did not depart and overstayed in Hong Kong since 19 October 2022. Police arrested her and referred her to the Immigration Department, where she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her divorced husband, who had threatened to kill her because she divorced him and refused to repay the loans drawn by him. Detailed of her story can be seen from the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001062_2025_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 the Notice of Decision dated 4 July 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 27 September 2024, the Board conducted an oral hearing. She had given oral evidence and answered the Board’s questions.

8.  Having considered the applicant’s evidence, the Board found the facts below.

(1)  The applicant was a reliable witness. [90]

(2)  The Board accepted her story and her fear. [100]

(3)  However, the Board did not accept that her ex-husband would carry out his threats as judged from what he did to her and she was able to take away her child to her maiden home. The Board concluded that she would not face any appreciable applicable risks if she returns to Indonesia. [100]-[101]

(4)  State protection will be available to her. [103]

(5)  Internal relocation will be viable. [105]

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 6 May 2025 for leave to apply for judicial review of the Board’s Decision.

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

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 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.

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.

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