KUSTIN v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

bjbj 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 BETWEEN Kustin Applicant The Torture Claims Appeal Board Putative Respondent Director of Immigration Putative Interested Party 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; Order by Deputy High Court Judge K.W. Lung: The extension of time for the application for Judicial Review be refused; and The application for leave to apply for Judicial Review be dismissed. Observations for the Applicant: THE APPLICATION 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 , which expired on 4 February 2025. Her application was filed on 6 2025, which is late for more than 3 months. This issue will be dealt with below. The applicant did not request an oral hearing. 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 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 HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001062_2025_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001062_2025_files/the_Board's_Decision.pdf . The Director s Decision The Director considered the applicant s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, ( Ordinance Torture risk ); 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 ); 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 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 ). By way of the Notice of Decision dated 4 July 2024 ( the Director 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 The applicant appealed the Director s Decision to the Board. On September 2024, the Board conducted an oral hearing. She had given oral evidence and answered the Board s questions. Having considered the applicant s evidence, the Board found the facts below. The applicant was a reliable witness. [90] The Board accepted her story and her fear. [100] 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] State protection will be available to her. [103] Internal relocation will be viable. [105] 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 The applicant has filed Form 86 dated 6 May 2025 for leave to apply for judicial review of the Board s Decision. The applicant did not raise any specific ground in support of her application. Nor did she explain her late application. DISCUSSION As mentioned in paragraph 1, this application is late. In AW v. Director 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 case. 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). The Court will bear in mind that the Board s Decision should be examined with rigorous examination and anxious scrutiny. 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. The applicant has failed to raise any valid ground to challenge the Board Decision. In my view, the Board s Decision is reasonable and the Court has no reason to interfere with it. 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 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. Dated the 16th day of October 2025 (Klein Tse) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 16/10/2025 Kustin Applicant s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties solicitors on 16/10/2025 Torture Claims Appeal Board Putative Respondent s ref. no.: USM 24101 Director of Immigration Putative Interested Party s ref. no.: INCL-0000583-24(F) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 . Delay in applying for relief (O. 53, r. 4) (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988) (2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding. 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