YULISTIANI BESU acting as the next friend of ABUDUL MUHAMMAD ZEHAN EL BARACK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1308/2026

[2026] HKCFI 4778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1308 of 2026

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;

1.  Leave to apply for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.  This application is related to another action HCAL 1076 of 2025 where the mother was one of the applicants and also acting as the next friend of her another son. Their application was dismissed by this Court. The facts in support of this application are the same as the other case.

2.  The applicant was born on 4 June 2025, is aged one and a half years old. The mother is acting as the applicant’s next friend. The applicant relies upon the facts of the mother in support of his claim.

3.  The applicant applies for leave to apply for judicial review of the Decision dated 8 June 2026 of the Torture Claims Appeal Board (“the Board’s Decision”).

4.  The applicant did not ask for a hearing.

5.  The applicant was not legally represented before the Board. The Board had written a letter and referred them to seek legal aid from the Director of Legal Aid (“DLA”), which had considered his case and refused to provide him with legal representation. [44]

6.  Having considered the Board’s Decision, this Court is of the view that the son’s case had been fully canvassed before the Board, which had applied advanced standards of fairness to the case. The mother had also submitted to the Board her concerns of the son if they were returned to Indonesia. The Board had further taken into consideration if the son returned to his father’s country, Pakistan. Since DLA had considered the applicant’s case and refused his application, it will be unlikely that DLA will agree to provide him with legal representation for the Court’s hearing. Therefore, the Court decides to proceed to consider his application without referring the mother to seek legal representation from the DLA.

7.  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, the Director of Immigration is the interested party, and the mother is acting as the next friend of the applicant.

The applicant, the son

8.  The mother is a national of Indonesia. The father of the son is a Pakistani, who is making his own non-refoulement claim separately. The son may go to Pakistan with his father, if refouled. The Board had taken into consideration of this factor in the Board’s Decision. [89]

9.  The applicant lodged a non-refoulement claim, on the basis that, if refouled, he will be harmed or killed by the mother’s husband because she did not remit money to him and she had an affair with the son’s father in Hong Kong. The son was born out of wedlock.

10.  Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL001308_2026_files/the_Board's_Decision.pdf

The Director’s Decision

11.  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”).

12.  By way of Notice of Decision dated 23 March 2026 (“the Director’s Decision”), the Director assessed the applicant’s claim on all applicable grounds and dismissed his claim because his claim was unsubstantiated.

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 29 May 2026, the Board conducted an oral hearing for his appeal. At the hearing, both the father and the mother had given oral evidence and answered the Board’s questions.

14.  The Board had taken on board the Court of Appeal’s decisions in Fabio Timogan & Others v Ruth [2020] HKCA 971. Having considered the evidence, the Board found the facts below.

(1)  The mother will be protected by the government of Indonesia if she returns there. [80]

(2)  The Board does not accept that the applicant will be discriminated or bullied on account of his mixed race if he returns to Indonesia with his mother, as supported by country-of-origin information (“COI”). [81]

(3)  The government of Pakistan will render protection to the applicant if he goes to Pakistan with his father. [82]

(4)  The Board does not accept that the applicant will be discriminated or bullied on account of his mixed race if he goes to Pakistan with his father, as supported by COI. [83]

(5)  The applicant’s claim fails under the applicable risks.

15.  It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

16.  On behalf of the applicant, the mother filed Form 86 on 20 July 2026 for leave to apply for judicial review of the Board’s Decision. The mother did not put forth any valid ground in support of the application.

DISCUSSION

17.  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).

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

19.  It is obvious that the Board had exercised advanced standards of fairness to this case. It had referred his case to DLA for legal representation. The Board had considered the son’s case, taking into consideration if he goes with his mother to Indonesia or with his father in Pakistan, concluding that he will be free of any risk under either of the situations.

20.  The Court considers that there is no other issue specific to the son that was not put to the Board for consideration because of lack of legal representation for him.

21.  The applicant therefore fails to show that there is any realistic prospect of success in his proposed judicial review.

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

23.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’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