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

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

Following:

1.  Leave to apply for Judicial Review be refused.

2.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the daughter’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her daughter, aged about 3 (“the daughter”). They are illegal immigrants.  The mother gave birth to her daughter in Hong Kong. They lodged a non-refoulement claim with the Director of Immigration (“the Director”) that, if refouled, they will be harmed or killed by the mother’s mother and her husband because she gave birth to the daughter out of wedlock. The mother further said that the daughter may also be subjected to discrimination in Indonesia because she was born out of wedlock. The Director rejected their application.

2.  They jointly appealed to the Torture Claims Appeal Board (“the Board”). Both the daughter and the Director were legally represented before the Board. The father of the daughter had also appeared before the Board as a witness.  The Board dismissed their appeal.

3.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 8 May 2024 of the Torture Claims Appeal Board (“the Board’s Decision”).  Their joint application relies upon the facts of the mother.

4.  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 applicants

5.  The applicants are nationals of Indonesia. They are illegal immigrants, staying in Hong Kong without the Director’s permission.

6.  Details of the facts are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001276_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

7.  The Director considered the applicants’ claims 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”).

8.  By way of Notice of Decision dated 20 April 2022 (“the Director’s Decision”), the Director assessed the applicants’ claims and dismissed them on all applicable risks because they were unsubstantiated.

The Board’s Decision

9.  The applicants appealed the Director’s Decision to the Board. On 27 September 2023, the Board conducted an oral hearing for their appeals. The mother had given evidence and answered the Board’s questions. The daughter’s father had also given evidence to assist the Board.

10.  Having considered the evidence, the Board made the findings below.

(1)   The daughter’s father is also a national of Indonesia. He planned to marry the mother if they return to Indonesia.  [58] & [118]

(2)   Bearing in mind of the Court of Appeal case of Fabio Arlyn Timogan CACV 32 of 2020, the Board had separate consideration of the daughter, with the assistance of the duty lawyer.

(3)   As to the mother, the Board accepted that she may be subjected to harm amounting to torture, BOR 3 risk or persecution if she returns to Indonesia [109]; that she has the fear of harm from her mother and her husband in Indonesia [113]; that her husband is a police officer and it will be difficult for her to obtain protection at her locality [114].

(4)   The Board further noted that there is a new legislation that criminalizes sex outside marriage with punishment of imprisonment up to one year.  However, this legislation was enacted after the mother’s relationship with the father and the legislation does not have retrospective effect.  [116]-[117]

(5)   State protection will be available to the mother if she returns to Indonesia. [128]-[129]

(6)   As to the daughter, she may be subjected to violence or hostility from her maternal grandmother and her mother’s husband.  [115]

(7)   As to the mother and the daughter, state protection will be available and internal relocation is viable.  [130]-[137]

11.  For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

12.  The applicants filed Form 86 on 4 June 2025 for leave to apply for judicial review of the Board’s Decision.

13.  In support of their application, the mother has raised no specific ground to challenge the Board’s Decision.

DISCUSSION

14.  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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  It is clear that the applicants were legally represented and the Board had considered their claims separately, bearing in mind the Court of Appeal’s decision. The mother has raised no valid reason to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

17.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

18.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.

19.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.

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