|
HCAL 1960/2020
[2026] HKCFI 3649
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1960 OF 2020
|
BETWEEN
|
| |
Eli Kusmiati |
1st Applicant |
| |
Eli Kusmiati Rayhan Alvino Nichole (a minor) |
2nd Applicant |
| |
by Eli Kusmiati, his next friend |
|
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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 2nd applicant be amended to “Eli Kusmiati Rayhan Alvino Nichole (a minor) by Eli Kusmiati, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 16 September 2020”.
2. The 1st applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 16 September 2020 be dismissed.
3. Leave granted to the 2nd applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 16 September 2020.
4. The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 8 July 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 29 September 2020, the 1st and 2nd applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 16 September 2020 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 16 September 2020 (“the Board’s Decision”) regarding the 1st and 2nd applicants’ appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 December 2017 (“the Director’s Decision”) in respect of both applicants. It is clear that the subject matter of the Leave Application should be the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001960_2020_files/the_Board's_Decision.pdf
3. The 1st applicant is the mother of the 2nd applicant, who was just an infant, less than two year old, when his case was first heard by the Board on 2 November 2018. The 2nd applicant was not legally represented before the Board, and was only represented by the 1st applicant.
4. The Board did not find that returning both applicants to their country would likely bring about any of the proscribed harm under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicants’ appeal/petition and confirmed the Director’s Decision, which rejected the applicants’ non-refoulement claims.
Amendments
5. The 2nd applicant’s full name according to his Recognizance is “Eli Kusmiati Rayhan Alvino Nichole”. The 2nd applicant is represented by his mother, the 1st applicant, in the Leave Application. Thus, the 2nd applicant’s name should be stated as “Eli Kusmiati Rayhan Alvino Nichole (a minor) by Eli Kusmiati, his next friend” in Form 86.
6. The applicants named “USM” as the putative respondent and “T.C.A.B” as the putative interested party in Form 86, when the Board and the Director should be so named respectively.
7. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
8. Thus, this court makes an order on its own motion to amend the 2nd applicant’s name to “Eli Kusmiati Rayhan Alvino Nichole (a minor) by Eli Kusmiati, his next friend”, the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 16 September 2020”.
Legal representation of the 2nd applicant
9. The 2nd applicant is a minor born in Hong Kong out of wedlock on 28 June 2017 and is represented by the 1st applicant in the Leave Application.
10. The 1st applicant applied for legal aid for herself and the 2nd applicant but their applications were refused by the Director of Legal Aid on 13 January 2026.
11. At the hearing before this court on 11 June 2026, the 1st applicant confirmed that she would not engage a private lawyer to represent the 2nd applicant.
12. As the 2nd applicant was legally represented before the Director and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.
The applicants’ case
13. 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.
14. In sum, the applicants claimed for non-refoulement protection because if refouled to Indonesia, they would be at risk of harm from the 1st applicant’s creditor Andri, the 1st applicant’s family members and the community. The harm from Andri was due to the 1st applicant’s inability to repay an outstanding loan. The 1st applicant claimed that her father might harm her and the 2nd applicant since her father, a staunch Muslim, had told her not to return home with the 2nd applicant. The 1st applicant was also worried that she and the 2nd applicant might be discriminated by society and the public authorities of Indonesia as the 2nd applicant was an illegitimate child.
Oral hearing
15. The applicants requested for an oral hearing of the Leave Application and their case was heard on 11 June 2026.
16. When this court asked the applicants for their grounds of the intended judicial review, the 1st applicant merely said that she would like to ask this court to allow her two children to enjoy the education in Hong Kong, and she was fully aware of her own mistakes. When asked what was wrong with the Board’s Decision, the 1st applicant said that she was not able to provide strong evidence to support her case, and she was unable to provide the debt certificate to prove the existence of her debt. The applicant told this court that her father had passed away in 2023. The debt certificate which was with her father was lost even when her father was still alive.
17. As to the 2nd applicant’s case, the 1st applicant said that the 2nd applicant was born in Hong Kong and loved living in Hong Kong. The 1st applicant wished that he could stay in Hong Kong until he finished primary school. The 1st applicant added that the biological father of the 2nd applicant was an Irish Filipino and was no longer in touch with them. She was not legally married to the 2nd applicant’s father, and hence the 2nd applicant would face some discrimination and mocking as an illegitimate child. Moreover, the 2nd applicant does not speak Indonesian.
Grounds for judicial review
18. 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).
19. The 1st applicant did not advance any ground for her own and the 2nd applicant’s case in Form 86, nor in her supporting affirmation dated 29 September 2020.
20. As aforesaid, at the oral hearing before this court on 11 June 2026, the 1st applicant did not advance any grounds for judicial review for her own case either. In fact, she admitted that she did not provide strong evidence for her non-refoulement claim. Her father, who was one of her causes of fear of returning to Indonesia, had passed away in 2023.
21. In respect of the 2nd applicant, the 1st applicant only asked that the 2nd applicant be allowed to remain in Hong Kong for his education. She added that the 2nd applicant’s father was an Irish Filipino, the 2nd applicant did not speak Indonesian and might face some discrimination and mocking if he was returned to Indonesia.
Discussion
22. This court will first deal with the 2nd applicant’s Leave Application.
23. The 2nd applicant was an infant less than two year old when his case was first heard by the Board on 2 November 2018. He was not legally represented at the Board’s hearing and was only represented by his mother, ie the 1st applicant. Thus, with the lack of legal representation, it was possible that the 2nd applicant’s own case might not have been properly presented to the Board for its consideration.
24. This court notes from the Board’s Decision that the Board had generally considered the 2nd applicant’s claim separately from that of the 1st applicant, following the guidance set out by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth, Esq [2021] 2 HKC 458.
25. The 2nd applicant’s risks from his maternal grandparents, his ability to assess suitable education and social services, and his risk of being discriminated as an illegitimate child born out of wedlock had been duly assessed by the Board.
26. However, the Board was fully aware of the fact that the 2nd applicant is a child of mixed race. The issue of the 2nd applicant being of mixed race ethnicity was brought up by the 2nd applicant’s legal representative when his case was assessed by the Director in the first tier of the screening process. Nevertheless, the Board did not separately consider the difficulties and/or discrimination the 2nd applicant might face upon refoulement as a child of mixed race.
27. As held in Re Shahul Hameed Beer Mohamed and Others, 08/04/2026, CACV 77/2024, [2026] HKCA 632 and Re Bantigue Susan Banes and Another, 29/09/2025, CACV 234/2024, [2025] HKCA 853, the Board should have considered the 2nd applicant’s unique situation as a child of mixed race, which might be a cause for discrimination. It is therefore arguable that the Board had failed to give adequate consideration to the 2nd applicant’s claim under the principles as set out in the aforesaid cases.
28. Thus, it is this court’s view that the 2nd applicant’s case for the intended judicial review is arguable and leave should be granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case.
29. As to the 1st applicant’s case, her danger arising from her creditor and her own family, as well as discrimination by society that she might face, had been duly assessed but rejected by the Board. If the 1st applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
30. In assessing the appeal/petition by the 1st applicant, the Board took into consideration all the facts presented by her.
31. With regards to the 1st applicant’s fear of her creditor Andri, the Board did not find it reasonably likely for the 1st applicant to be owing a debt to a creditor in Indonesia. The Board did not find the 1st applicant’s story about the loan taken out from Andri and the suggested use of violence or threat by Andri to be credible.
32. In respect of the 1st applicant’s fear of her father, there was no evidence to show that the 1st applicant’s father had a violent propensity. Moreover, the Board found it unlikely that the 1st applicant would return to her father’s place to live with her father, her stepmother and her half-siblings when she returned to Indonesia. The 1st applicant’s life pattern showed that she led an independent life of her own way from her father and her half-siblings at a very young age, when she was about 15 years old. She lived away from home in different places to make her own living. On the assumption that she did not wish to return to her native village, the 1st applicant had the option of relocating to other parts of Indonesia to make a living. There were various organisations within Indonesia which were prepared to offer assistance to single mothers as well as illegitimate children.
33. The 1st applicant’s problems with her father as well as the creditor were private in nature and did not involve the state. There was no element of state acquiescence in her case, and her fear for both her father and her creditor was not for a Convention reason.
34. Moreover, the Board found from extensive country of origin information (“COI”) that state protection as well as other avenues for seeking protection and assistance were available to the 1st applicant.
35. As to the claimed hardship that she might face from society or the community as a whole, the Board found from COI that social attitude towards single mother family was changing and evolving. Although stigmatization and discrimination towards single mother still existed in Indonesia, it could be seen single mother was gaining greater recognition in the country. Indonesia had made efforts to promote women’s rights. It had ratified the Convention for the Elimination of Discrimination Against Women. The Board found it reasonably likely that the 1st applicant, as a single mother, would have the assistance of various organisations to establish herself in her country.
36. Thus, the Board was satisfied that the 1st applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the USM.
37. This court finds no flaw in the Board’s finding that the 1st applicant was not at risk of any of the proscribed forms of harm under the USM.
38. 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 1st applicant has failed to establish such a claim in respect of her own case and hence leave must be refused regarding her own application.
Conclusion
39. For reasons aforesaid, the Leave Application in respect of the 1st applicant’s application regarding the Board’s Decision is dismissed. Leave is granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision.
40. The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 8 July 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 24th day of June 2026
| |
( Gladys LEE )
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 his 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/Handed to the applicants/the applicants’ solicitors
on: 24/06/2026
Applicants’ ref. no:
Nil |
|
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: 24/06/2026
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 9837/18/1/110/I987 &
USM 9838/18/1/111/I988
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2873/17 (formerly RBCZ 13191/16) &
QA T/C 2874/17 (formerly RBCZ 11533/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|