VERI BURI LASTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 231/2020

[2025] HKCFI 2069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 231 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.   By Form 86 filed on 21 January 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 5 December 2019 (“the Board’s Decision”) confirming the Director of Immigration (“the Director”)’s decision dated 30 July 2019 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.  The material facts of this case, including the Applicant’s personal background and the matters allegedly supporting her claim that she would be harmed or killed by her ex-husband and family members due to her new relationship and having a child with a man in Hong Kong, as well as the relevant immigration and procedural history, were set out by the Board.  It is unnecessary to repeat them, and for completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

3.  As noted in the Memorandum of Notification of an Application for Legal Aid, the Applicant applied for legal aid on 6 May 2025, which the Director of Legal Aid subsequently refused on 16 July 2025.  

Discussion

4.  After considering the Applicant’s case and the evidence presented, the Board made the following findings of fact:

(1)   At the hearing before the Board, the Applicant no longer asserted that she was at risk of harm from her ex-husband.  Instead, she admitted that they had separated in 2007 and that she no longer knew what happened to him.  In any event, the Applicant was divorced and had no contact with her ex‑husband since at the latest 2011.  They had been estranged for many years and had no involvement in each other’s lives.  He played no role in her life, and her older son resided with her sister.  The Board did not accept that the ex-husband intended to harm either her or her son, Axell.

(2)   The Applicant also did not claim, at the hearing before the Board, that members of her family wished to harm her because of her situation.

(3)   When questioned about her claim that she would be ostracized by the public, the Applicant was unable to identify who might wish to harm her or what form such harm would take.  The Board accepted that single women with children, and those involved in extra-marital relationship, might face social disapproval in Indonesia.  However, there was no evidence that the Applicant would suffer discrimination amounting to harm at the level of severity required for international protection.

(4)   Even though the Board accepted that the Applicant’s family had advised her it would be best to marry Axell’s father so that he could support them, the Board also noted that her family had taken considerable steps to assist her and continued to care for her older son in Indonesia. Accordingly, the risk that they would abandon her in a time of genuine need was limited.  It was likely that they would provide her with some shelter and assistance.

(5)   The Board was also satisfied that, upon return, the Applicant would have access to adequate voluntary services to enable her and Axell to subsist.  In addition, the Indonesian government has introduced a number of social assistance initiatives to support the poor.  There have been significant improvements in the welfare safety net.   

(6)   The Applicant demonstrated to the Board that, given her level of education, skills, and capacity, she was capable of obtaining employment and securing accommodating independently of her family.  There was no reason to conclude that she would be unable to find work upon her return.

5.  Based on the foregoing, the Board was not satisfied that the Applicant was at risk of serious harm from her community, family, or any other individual simply because she gave birth to Axell out of wedlock. Specifically, the Board found that (i) the Applicant’s claim for protection based on Persecution risk was not well-founded; (ii) the Applicant was not at risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment if returned so as to constitute a breach of BOR 3; (iii) as there was no real risk that the Applicant would be arbitrarily deprived of her life, she failed to establish that she would be exposed to a real risk of a violation of her right to life so as to constitute a breach of BOR 2; and (iv) the Applicant was also not in danger of being subjected to torture if returned to Indonesia.

6.  I have rigorously examined and anxiously scrutinized the Board’s Decision, applying the enhanced standard as required by law in view of the seriousness of the issues involved (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).  I am unable to accept the complaint that the Board failed to consider the alleged claim that the Applicant’s family would not want her to bring back Axell to Indonesia.  Quite the contrary, the Board extensively considered the issue and made findings of fact as highlighted above.  In so doing, the Board began by setting out the burden and standard of proof, and identifying the relevant law and key legal principles.  The Board then proceeded to analyze the evidence regarding the risks of harm, carefully assessing the facts and maintaining a very high standard of fairness.  The Applicant has failed to identify any valid or justifiable grounds to challenge the Board’s Decision.

7.  In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or decide the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.).

8.  Taking all these into account, the Applicant’s intended application for judicial review is not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

Conclusion

9.  Accordingly, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

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