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HCAL 1323/2025
[2026] HKCFI 1089
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1323 of 2025
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BETWEEN
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Sulistiyowati Yetik |
1st Applicant |
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Sulistiyowati Yuen Tin Yan |
2nd Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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 (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
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 1st applicant is the mother (“the mother”) of the 2nd applicant, her daughter (“the daughter”), aged 1. They are illegal immigrants. The mother gave birth to her daughter in Hong Kong.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 21 March 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the mother.
3. The applicants did not request a hearing. Having considered the Board’s Decision, the Court considered that a hearing was not required despite a minor in this application.
The applicants
4. The applicants are nationals of Indonesia.
5. The applicants lodged a non-refoulement claim on the basis that, if refouled, they will be harmed or killed by a loan shark because she was unable to repay her loan and her former husband because she gave birth to the daughter out of wedlock.
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/HCAL001323_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 the Director’s Decision, the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.
The Board’s Decision
9. The applicants appealed the Director’s Decision to the Board. On 27 February 2025, the Board conducted an oral hearing for their appeals. The mother had given evidence and answered the Board’s questions.
10. Having considered the evidence, the Board made the findings below.
(1) As to the mother, she was an unsatisfactory witness as she shifted her evidence and the Board did not believe her evidence. [65]
(2) She was unable to supply particulars of the daughter’s father, which is indicative of a fabrication of her story. [69]
(3) The Board accepted that she might be discriminated as a single mother in Indonesia, but such discrimination would not amount to BOR 3 risk. She might have some assistance in Indonesia as according to the country of origin information (“COI”). [70]
(4) The Board did not accept that she would not have family support in Indonesia if she returns with the daughter. [71]
(5) The Board did not accept that her former husband will harm her upon her return to Indonesia. [72]
(6) As to the daughter, the Board bore in mind the Court of Appeal’s guidance in Fabion Arlyn Timogan v Evan Ruth Esqu [2020] HKCA 971 and found that though there may be some sort of discrimination against the daughter in Indonesia, however, such discrimination will not amount to any of the applicable risks. [73]-[77]
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 10 June 2025 for leave to apply for judicial review of the Board’s Decision.
13. In support of their application, the mother has not raised any 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. The mother has not raised any specific ground against the Board’s Decision.
17. The Board had considered the child’s situation separately. I consider that the Board had administered advanced standards of fairness in this case and there is no child issue, which was not presented to the Board for consideration because of lack of legal representation.
18. The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.
DISPOSITION
19. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
20. 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.
Dated the 5th day of March 2026
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(Klein Tse)
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 to the Applicant
on 5/3/2026
Sulistiyowati Yetik
Sulistiyowati Yuen Tin Yan
Applicant’s ref. no:
Nil. |
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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 5/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25286; USM 25287
Director of Immigration
Putative Interested Party’s ref. no.: RBCL/1088/24 (CZ); RBCL/2271/24
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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