ENDANG TRI WAHYUNI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2319/2019 and HCAL 1741/2021

[2025] HKCFI 3839

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2319 of 2019

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1741 of 2021

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 the documents and all Applicants being absent at the hearing on 4 August 2025;

1.  Both applications are to be heard together;

2.  Extension of time to apply for leave to apply for Judicial Review in HCAL 2319/2019 be granted; and

3.  Leave to apply for Judicial Review in both applications be refused.

Observations for the Applicant:

Introduction

1.  There are two applications for leave to apply for judicial review (“leave application(s)”) before the Court. The 1^st Applicant in the two applications is the mother of the other applicants. In HCAL 2319/2019, she applied on behalf of herself, her elder daughter (the “elder daughter”) and her younger daughter (the “younger daughter”). In HCAL 1741/2021, she applied solely on behalf of her younger daughter. They sought leave to review the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 March 2019 (the “First Decision”) in respect of the mother and the elder daughter and the decision dated 1 December 2021 in respect of the younger daughter (the “Second Decision”) dismissing their respective appeals against the decision of the Director of Immigration (the “Director”) refusing their applications for non-refoulement protection. The two applications are heard together. It should be noted that though the younger daughter was named as a party to the leave application in HCAL 2319/2019, the First Decision is not related to her at all and she should not have been named as a party in that leave application.

2.  The leave application in respect of the First Decision was filed on 12 August 2019. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was filed out of time by more than two months. For the benefit of the elder daughter, who being an infant and had no control over the litigation, the Court granted her and her mother leave to file the application out of time. The leave application in respect of the Second Decision was filed within time.

3.  At an oral hearing on 12 February 2025, the Court explained to the mother who represented her two daughters the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for her daughters so that their specific interest may be fairly put before the court. She was also advised of the services of the Legal Aid Department. Both applications were adjourned for the Applicants to apply for legal aid.

4.  All the Applicants applied but their applications were refused by the Legal Aid Department on 26 June 2025. They did not attend the hearing fixed on 4 August 2025. Having regard to the underlying objectives stated in Order 1A rule 1 of the Rules of the High Court, in particular the need to ensure that a case is dealt with as expeditiously and as reasonably practicable and with a sense of reasonable proportionality and procedural economy and having also considered the applicable law, the leave applications, the issues raised, that the Applicants had been legally represented before the Director and before the Board and that no new evidence would be advanced by them in the leave applications, the Court was of the opinion that despite the absence of legal representation, the leave applications may be justly determined without prejudicing the interest of the daughters. The Court considered the absence of legal representation was a mere irregularity, which would not annul the proceedings. Hence, the Court proceeded to make the following determination.

Background

5.  All Applicants are Indonesian nationals. Their personal background, the factual background leading to the present application, the basis of their claim, the arguments they advanced, the finding of the Board and the reasons for its Decisions are set out in details in the Board’s Decisions. These will not be repeated here. The hyperlinks to the Board’s Decisions are included below[1] for reference. In gist, the mother claims that if returned to Indonesia she will be harmed or killed by her husband for refusing to serve his friends or to sleep with them, being unable to repay the loan she borrowed from him and giving birth to the two daughters out of wedlock. She also claims she would face discrimination and social exclusion for being an unmarried woman. The daughters claim they would be harmed or killed by their mother’s husband for being born out of wedlock and be discriminated by the community for being illegitimate.

6.  The mother testified on behalf of herself and her two daughters before the Board in two separate hearings. In the First Decision, the Board found her evidence vague, inconsistent and that she exaggerated or fabricated aspects of her claim to fortify her claim for protection. It found her incredible and rejected her evidence. It found her elder daughter’s claim is entirely based on the mother’s claim. While acknowledging on the basis of authoritative and credible country of origin information (“COI”) that there are problems of corruption and ineffectiveness in the Indonesian police and that there is a negative attitude towards unmarried women, single mothers and illegitimate children in Indonesia, the Board found reasonable state protection is, nevertheless, available and that the mother and her elder daughter could relocate to other areas in Indonesia to avoid the risk of harm from the mother’s husband. A differently constituted Board made similar finding in respect of the younger daughter’s claim and reached the same conclusion in the Second Decision.

Grounds for judicial review

7.  In their supporting affirmation dated 12 August 2019, the mother and the elder daughter reiterated their case that they did not want to go back to Indonesia, that their lives would be in danger if refouled and that they wanted to stay in Hong Kong as they felt safe here. The mother made a similar affirmation dated 22 December 2021 on behalf of her younger daughter. In effect, they are seeking to challenge the finding of fact by the Board, which is not permissible in an application for judicial review. In the absence of proper grounds of application, this Court could only review the Board’s Decisions on the usual challenges such as errors of law, procedural unfairness and irrationality in the Decisions.

Overall scrutiny

8.  Having rigorously examined the Decisions, the papers and the evidence with anxious scrutiny, the Court is satisfied that in both Decisions 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 raised by the Applicants’ claims and observed a very high standard of fairness.

9.  The mother’s and her daughters’ claims are based on the same facts. Part of the mother’s claim is based on discrimination and social exclusion for being an unmarried woman. She also specifically raised on her daughters’ behalf their special circumstances, ie their being born out of wedlock and their child specific risks such as discrimination by the community. She gave evidence on her own behalf as well as on her daughters’ behalf in the two appeals. In both Decisions, the Board found the mother’s evidence incredible. It rejected her evidence. Thus, the Board found they had failed to prove their feared risk of harm from the mother’s husband. Seemingly, the Board considered the daughters’ child specific risks albeit along with the mother’s risk of discrimination, obviously because their claims overlap and their alleged risks are intertwined. It would strengthen the daughters’ claims if all their claims and risks were considered together. To make separate assessments would be unnecessary and artificial in the circumstances. No criticism could be made of the Board’s decision not to assess the daughters’ risks separately from the mother’s. The Board found on the basis of authoritative country of origin information that adequate state protection, which includes safety, health care and education, would be available to the Applicants in Indonesia and there was no evidence to suggest that they would be denied access to such protection. It found they could also avoid the alleged risk of harm by internal relocation. Applying the law applicable to non-refoulement protection to these finding of facts, the Board found the Applicants had failed to prove the factual basis in support of their claims to non-refoulement protection and came to the conclusion that they were not entitled to protection under any of the four applicable grounds under the United Screening Mechanism.

10.  These are mixed finding of facts and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they 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 not detect any error of law in the Decisions or procedural unfairness at any stage of the non-refoulement proceedings. The Decisions do satisfy the enhanced Wednesbury test. They are not Wednesbury unreasonable or irrational. The Decisions are utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

11.  In respect of the leave application under HCAL 2319/2019, extension of time to file the leave application is granted, but the leave application is refused. The leave application under HCAL 1741/2021 is also 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