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HCAL 3902/2019
[2025] HKCFI 5614
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3902 OF 2019
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BETWEEN
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Suliyana |
1st Applicant |
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Tahir Soha Emaan |
2nd Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative party be amended to “Director of Immigration”.
2. Leave granted to both the 1st and 2nd applicants to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 29 November 2019.
3. The applicants are directed to issue an originating summons for the intended judicial review on or before 3 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Observations for the applicants:
Introduction
1. By way of Form 86 dated and filed on 31 December 2019, the 1st applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 November 2019 (“the Board’s Decision”).
2. Apart from her supporting affirmation dated 31 December 2019, the applicant filed a second affirmation dated 21 January 2020 seeking leave to amend Form 86 by adding her daughter as the 2nd applicant to the Leave Application and attached a draft amended Form 86 to the second affirmation.
3. On 23 January 2020, DHCJ Lung granted leave to the 1st applicant to amend Form 86 by adding “Tahir Soha Emaan” as the 2nd applicant.
4. Thus, the Leave Application is now an application by both the 1st applicant and the 2nd applicant to apply for leave to apply for judicial review in respect of the Board’s Decision, which can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003902_2019_files/the_Board's_Decision.pdf
5. The Board found that neither the 1st nor the 2nd applicant had shown any grounds for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the appeals/petitions of the applicants and confirmed the decision of the Director of Immigration (“the Director”) dated 19 January 2018, which rejected their claims for non-refoulement protection.
Amendment
6. In Form 86, the applicants named the Board and the Director as the 1st and 2nd putative respondents respectively, but spelt the name of the Board wrong. However, only the Board should be the putative respondent.
7. The applicants also named the Board as the putative interested party, when the Director should be so named.
8. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicants’ case
9. It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
10. In sum, the applicants claimed for non-refoulement protection because if refouled to Indonesia, the 1st applicant feared ill-treatment or even death at the hands of her husband and a moneylender named Tepyani to whom both she and her husband were indebted. In addition, the 1st applicant believed that her husband would kill both her and the 2nd applicant, whom the 1st applicant gave birth to in Hong Kong with a Pakistani.
Oral hearing
11. The applicants requested for an oral hearing of the Leave Application and their case was heard on 18 September 2025.
12. Only the 1st applicant was present at the hearing. When this court asked her for the grounds for the intended judicial review, she said that it was for safety as she felt threatened. She confirmed that this matter was considered by the Board but she could not tell what was wrong with the Board’s Decision.
Grounds for judicial review
13. The applicants are required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
14. The applicants did not advance any ground for the intended judicial review in Form 86, nor in the 1st applicant’s supporting affirmation.
15. As mentioned, the 1st applicant told this court at the oral hearing that she could not tell anything wrong with the Board’s Decision.
Discussion
16. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
17. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicants for the intended judicial review.
18. First of all, this court notes that the 2nd applicant was born out of wedlock in Hong Kong on 6 December 2016 and she is still a minor. The 2nd applicant was not legally represented in these proceedings, even though the 1st applicant is her mother and could have represented her.
19. This court had in fact issued a letter to the 1st applicant on 10 June 2025 to inform her of the requirement under Order 80, rule 2 of the Rules of High Court that the 2nd applicant should have legal representation, and the Leave Application was adjourned for three months for the applicants to arrange legal representation. The 1st applicant did not respond to the letter and did not seek legal representation for the 2nd applicant.
20. Although only the 1st applicant appeared before this court at the hearing on 18 September 2025 and the 2nd applicant was absent and unrepresented, this court will treat the non-compliance with Order 80, rule 2 as a mere irregularity without rendering the Leave Application a nullity.
21. As discussed in the ensuing paragraphs, the applicants’ claims are reasonably arguable and have realistic prospects of success. This court is prepared to grant leave to both of them to apply for judicial review in respect of the Board’s Decision. Thus, the lack of legal representation for the 2nd applicant would not have any prejudice against the 2nd applicant.
22. This court finds that the Board had effectively treated the 2nd applicant’s claim subsumed under the 1st applicant’s claim. The rejection of the 2nd applicant’s claim appears to be contrary to the principles laid down in Fabio Arlyn Timogan[1] and Re Jasvir Singh[2], in particular, the principle that the dismissal of the claim of a parent should not automatically lead to the dismissal of the claims of the minor without separate consideration of the minor’s personal circumstances.
23. There could be relevant minor-specific risks or considerations which ought properly to have been considered by the Board, especially when the 2nd applicant was born out of wedlock and her father is of a different nationality. These could be underlying matters in her case which may give rise to grounds specific to her claim. However, the Board did not address these matters at all.
24. Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 2nd applicant’s claim in the Board’s Decision.
25. As to the 1st applicant’s claim, the Board’s assumed that the 1st applicant did receive the text message from her husband and that a threat to kill was made to her parents by her husband. However, the Board found that the 1st applicant’s husband had never had any intention of putting his words into effect. The Board did not give any reason for this finding and it seems that it was just the Board’s speculation and hence irrational.
26. This court notes that the Board had made findings that if any threat to either or both of the applicants did exist, they could avoid such threats if they were to relocate away from the 1st applicant’s previous home. The Board did mention that Indonesia was a large country with huge population, and that the suggestion that either Tepyani or the 1st applicant’s husband would somehow be able to track them down was fanciful. Hence, the Board concluded that it was not unreasonable or impractical for the applicants to relocate themselves away from the 1st applicant’s home to a destination such as the capital Jakarta.
27. However, the Board failed to reason why internal relocation would not be unreasonable or impractical.
28. As held by Januzi v Secretary of State for the Home Department [2006] 2 AC 426, “The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so.”
29. Thus, in considering the viability of internal consideration, the Board ought to have considered whether it would be unreasonable and unduly harsh for the applicants to do so.
30. If refouled, the 1st applicant would likely have to bring up the 2nd applicant, who is still at a tender age, a daughter of a father of different nationality and was born out of wedlock, all by herself outside her home area. This court is of the view that the Board had failed to consider these elements when concluding that it was not unreasonable or impractical for the applicants to relocate themselves away from the 1st applicant’s home. Hence, the Board’s conclusion on internal relocation also appears to be irrational.
31. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicants have established such a claim and hence leave ought to be given.
Conclusion
32. For reasons aforesaid, leave is granted to both the 1st and 2nd applicants to apply for judicial review in respect of the Board’s Decision.
33. The applicants are directed to issue an originating summons for the intended judicial review on or before 3 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 19th day of November 2025
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( Irene LEE )
for Registrar, High Court
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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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 19 November 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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:
19 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10124/18/2/8/I10152
USM 10125/18/2/9/I10153
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3610/17
(Formerly RBCZ 10504/17)
QA T/C 3611/17
(Formerly RBCZ 10505/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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