KARTINI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1929/2019

[2025] HKCFI 5065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1929 of 2019

 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 oral submissions by the 1st and 2nd Applicants in open court;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.   Extension of time to file the leave application be refused; and

3.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 9 July 2019 for leave to apply for judicial review (the “leave application”) against a decision dated 11 July 2016. The Applicants did not name any proposed respondent but named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as the proposed interested party. In their supporting affidavit, they annexed a copy of the Board’s decision dated 21 July 2017 (the “Decision”) dismissing their appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 July 2016 and 15 May 2017.  Hence, leave is granted to amend the Form 86 by naming the Board as the proposed respondent, the Director as the interested party and the Decision of the Board as the decision in respect of which relief is sought.

2.  The leave application was filed more than two years after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged more than one and half years out of time.  Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed with the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.  As a child’s interest is at stake, the Court took the extra caution to consider merits of the substantive application.

4.  At the hearing on 10 February and again on 14 April 2025, this Court advised the Applicants that as the 2^nd Applicant is a minor, the 1^st Applicant who acted on his behalf should seek legal representation for the 2^nd Applicant so that his claim could be properly presented to the Court.  The Court adjourned twice pending the outcome of their legal aid application.  Eventually, on 6 May 2025, the Court was informed that their legal aid applications were refused.  At the hearing on 8 October 2025, the 1^st Applicant confirmed that she did not intend to seek legal representation.  The Court was satisfied from its enquiries made of the 1^st Applicant that she had the ability to present her and the 2^nd Applicant’s claims fully to the Court.  Having read the papers and considered the issues raised by the application, the Court was satisfied that the absence of legal representation was a mere irregularity which would not have the effect of rendering the determination a nullity.  Hence, it proceeded with the determination.

5.  The Applicants are Indonesian citizens.  The 1^st Applicant is a widow and has one child with her deceased husband before she came to work as a foreign domestic helper in Hong Kong.  She overstayed since 18 November 2012.  Whilst in Hong Kong, she developed a relationship with a man, and gave birth to the 2^nd Applicant on 7 July 2014.  They both made a non-refoulement claim.  Their personal background, the factual background leading to the present application, the basis of their claim and the arguments they advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[3] for reference.  In gist, the Applicants claims they will be harmed or killed by the 1^st Applicant’s brother for the 1^st Applicant’s conversion from Muslim faith to Christianity and for her giving birth to the 2^nd Applicant or for the 2^nd Applicant being born out of wedlock.  They also claim they will not be accepted by the 1^st Applicant’s family members and the villagers for the same reason. 

The finding of the Board

6.  The 1^st Applicant testified before the Board.  The Board had doubts as to when she was converted, but disregarded that as immaterial.  More importantly, the 1^st Applicant changed the nature of the harm they would be at risk from one of death to being disowned by the family.  The 1^st Applicant also conceded that her brother, their main source of fear, had ceased contacting her.  The Board assessed the Applicants’ claims on this new basis and found that their feared ill-treatment is not well-founded.  It found their fear not genuine as it is the 1^st Applicant’s evidence that she wanted to stay in Hong Kong until her son finished kindergarten.  On the basis of authoritative and credible country of origin information (“COI”), the Board found despite there are police failures and corruption in Indonesia, the government has been taking ongoing steps to combat corruption and to improve effectiveness of the police and other state authorities.  There are governmental and non-governmental organisations which provide assistance to women and children victims of domestic violence.  The Board found that there is nothing in the COI to suggest that the Applicants would be refused assistance.  It also found there is a functioning system and machinery for protection of the citizens. The Board was satisfied that reasonable state protection would be available to the Applicants.  They have no real risk on their return to Indonesia.

7.  While accepting domestic abuse and other forms of violence against women and children is a problem in Indonesia, the Board found from the COI that the Indonesian authorities are addressing the problem.  The National Commission of Violence against Women have made concerted efforts to prevent all forms of such violence. The Indonesian government also runs integrated service centres for women and children in all 34 provinces and approximately 242 districts.  These centers provide counselling and support services to women and children who were victims of violence.  Nationwide, the police operates “special crisis room” and “women’s desks” to assist victims of sexual violence. In addition, non-government organisations, such as Rifka Anissa, provide legal assistance to victims of domestic violence in bringing criminal cases against the perpetrators.

8.  The Board considered the 2^nd Applicant’s case separately from his mother’s.  Despite the possibility that the 2^nd Applicant as an illegitimate child would face some societal discrimination, it found that there is no evidence to suggest that a child will be denied education because his father’s name is not on his birth certificates or be denied other means of support or employment later in life or would be harmed for this reason.

9.  Applying the law to the above finding of fact, the Board came to the conclusion that the Applicants were not entitled to non-refoulement protection under any of the four applicable grounds under the USM. 

Grounds for judicial review

10.  The Applicants did not advance any grounds for judicial review in their Form 86.  In their supporting affirmation, the 1^st Applicant repeated their fears and danger returning to Indonesia. 

11.  At the hearing, after the legal principles applicable to judicial review were explained to them, the 1^st Applicant just reiterated her claim and said she had no place to live because she could not return to her family.  She confirmed she had no other problems and that her brother, who is her main source of fear, had lost contact with her.  She emphasized that her problem now is that the 2^nd Applicant has behavioral problems and requires special education.  None of these amount to attacks on the Decision on the basis of errors of law, procedural unfairness or irrationality.  Indeed, except for the 2^nd Applicant’s behavioral problem, those matters had been considered by the Board and rejected as a valid ground of claim for non-refoulement protection.  In fact, she indicated that their situation had improved.  As for the 2^nd Applicant’s behavioral problem, it is not a ground which would entitle him to protection under the Unified Screening Mechanism (the “USM”).  Also, it has not been advanced before the Board and is not anything which this Court may take into account in a judicial review.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

12.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  

13.  The Board’s finding set out in paragraphs 6 to 9 are the factual basis on which its Decision was made.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  It would be futile to grant them extension of time to file the leave application.

Conclusion

14.  For the above reasons, leave to amend the leave application is granted, but extension of time to apply for judicial review and the leave application as amended are refused.

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

[1] CACV 63/2015 (unreported) 3 November 2015

[2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[3] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL001929_2019_files/the_Board's_Decision.pdf