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HCAL 844/2022
[2026] HKCFI 2807
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 844 of 2022
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BETWEEN
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Endang Winarni |
1st Applicant |
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Jagdesh Kumar Anindiya Jasmine Sharma |
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 To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the 2nd Applicant’s application by Form 86 filed on 29 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 16 August 2022 (the “third Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 21 August 2020 refusing their application for non-refoulement protection. The 2nd Applicant, now aged 6, is represented by the 1st Applicant, her mother (the “mother”).
2. At the first hearing on 22 October 2025, both Applicants were not legally represented. The mother was advised by this Court of the requirement under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that her specific interest may be fairly put before the court. She was advised to seek legal representation from a private lawyer or from the Legal Aid Department. She applied for legal aid on the 2nd Applicant’s behalf, but her application was refused by the Director of Legal Aid on 13 February 2026. Having considered the applicable law, the leave application, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, and the 1st Applicant’s expressed intention not to seek private legal representation for herself and the 2nd Applicant, the Court considered the leave application may be justly determined despite the absence of legal representation. The Court was satisfied that the absence of legal representation is a mere irregularity which would not render the proceedings void.
3. The Applicant’s mother is an Indonesian national. She was married in Indonesia and gave birth to a daughter who is now living in Indonesia. She divorced her husband in March 2013 because he had an affair. Then she came to work in Hong Kong as a foreign domestic helper in June 2013. While in Hong Kong, she started a relationship with an Indian non-refoulement claimant (the “father”) in 2015. She gave birth to her second child, ie the 2nd Applicant’s sister (the “sister”) in June 2015 and then to the Applicant in November 2019.
4. The mother and sister are applicants for judicial review in HCAL 1835/2019 which is now pending in this Court. Their claim for protection had been rejected by the Director. Their appeal had been dismissed by the decision of a differently constituted Board (the “first Decision”). The Applicant’s father’s claim had also been rejected by the Director. His appeal had been dismissed by a decision of another differently constituted Board (the “second Decision”). The Applicant’s appeal was dismissed by another differently constituted Board in the third Decision.
5. The Applicants’ personal background, the factual background leading to the present application, the basis of the 2nd Applicant’s claim and the arguments advanced on her behalf, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the 2nd Applicant claims that she will be harmed or killed by her maternal grandfather and suffer societal discrimination for being born out of wedlock and of mixed heritage if refouled to Indonesia or by the uncle of her father’s ex-girlfriend if refouled to India.
Finding of the Board
6. The Board found on the basis of article 4(7) of the Citizenship of the Republic of Indonesia No. 12 2006 and the Citizenship Act 1955 of India that the Applicant is entitled to citizenship by descent of both Indonesia and India. Though neither the mother nor the father had registered the 2nd Applicant’s birth with their respective consulates in Hong Kong, they told the Board that they intended to register her birth, if they had to leave Hong Kong. The Board went on to assess the 2nd Applicant’s claim separately in respect of these two risk states.
7. The mother and father confirmed that they were married in August 2019, three months before the 2nd Applicant was born. Technically, the 2nd Applicant was born when her parents were lawfully married and not born out of wedlock. To give every benefit to the Applicant, the Board assessed her risk on the basis that her grandfather and/or the Indonesian society may impute that she, like her sister, was born when the mother and father were not yet married. It even found the grandfather’s anger would not be extinguished towards the 2nd Applicant just because her mother was married when she was born. It accepted that her grandfather’s anger would extend to the 2nd Applicant just as much as it did towards her mother and sister. It noted her mother’s evidence that the grandfather was a very hard, strict man, how he forced the grandmother to have two abortions, his grandfather’s anger on her mother for frustrating his plan to marry her to his friend’s son and his non-acceptance of the father for being a Hindu from India. However, the mother confirmed that the grandfather had never killed anybody before. Despite his threat to kill the mother’s sister for falling pregnant as a school girl, he did not do so despite he had the opportunity to. The Board accepted that the mother genuinely believed the grandfather was angry at her because of her relationship with a non-Muslim, her giving birth to the sister when she was unmarried and her frustrating his plan to marry her to his friend’s son. Nevertheless, it found the grandfather had no intention to do anything more to carry out those empty threats.
8. The Board also accepted that the 2nd Applicant is of mixed heritage. Accepting also that her father is a Hindu as was found in the Board’s second Decision, the Board accepted that the 2nd Applicant may face a real chance of some societal harassment and discrimination. Even allowing for her particular vulnerability as a child, the Board was not satisfied on the evidence before it that the 2nd Applicant may suffer such serious societal harassment and discrimination as would meet the high threshold of minimum level of severity to amount to any proscribed harm under the Unified Screening Mechanism (“USM”). It was also not persuaded that there is any real risk that the 2nd Applicant will be harmed because she was born when the mother and father were actually unmarried because that fact would not be known to anyone unless the mother revealed it. The Board found the risk speculative or remote. Thus, it found the 2nd Applicant would not be at risk of harm if refouled to Indonesia.
9. The 2nd Applicant’s feared risk of harm in India is primarily based on her father’s case. Her father claimed to fear harm from his ex-girlfriend’s uncle who was a former army officer and he opposed to their relationship. His father also made a general claim of fear due to general religious violence in India. In its second Decision the Board refused the father’s claim, in part, as being not credible. The Board noted that despite multiple opportunities had been given to the father, he never raised before the Board any fear for his family, if refouled. Adopting the reasoning in the second Decision, the Board found there is no real risk of any proscribed harm to the 2nd Applicant under any of the applicable grounds from the uncle of her father’s ex-girlfriend, if she is refouled to India.
10. At the hearing, the father and mother raised a new claim that they did not want the family to be separated. That claim raises article 19 of section 8 of the Bill of Rights and the United Nations Convention on the Rights of the Child. The Board rejected that claim as the Convention is not enforceable in Hong Kong.
The legal principles applicable to judicial review
11. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].
Grounds for judicial review
12. The mother did not advance any grounds for judicial review in her Form 86. In her supporting affirmation, she complained that the Board disregarded their dangerous situation. That is in effect a challenge of the Board’s finding of fact that the 2nd Applicant would not be at risk if refouled to Indonesia, which is impermissible in an application for judicial review. For reasons as explained in the following section, the Court is satisfied that the Board had carefully considered the evidence and there is no substance in this ground. In the absence of any particularized grounds of application, the court in a judicial review could only focus on errors of law procedural unfairness or irrationality in its overall scrutiny of the 3rd Decision.
Overall scrutiny
13. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully, tested it against common sense and inherent probability.
14. The Board basically accepted the mother’s evidence and assessed the 2nd Applicant’s claim on the basis of her mother’s evidence put at the highest. It accepted all her mother’s concerns on which her mother’s fear was based, such as her grandfather had forced her grandmother to have two abortions, her grandfather’s reaction to her aunt’s pregnancy, her mother’s frustrating her grandfather’s wish to marry her to his friend’s son, her mother’s inter-race and inter-religion marriage, her mother’s giving birth to her out of wedlock and her mixed heritage. It accepted the grandfather’s anger is real and the mother’s fear is genuine, but found the grandfather had no real intention to kill her or her mother. The Board also bore in mind the principles in the Court of Appeal judgment in Fabio Arlyn Timogan Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office[3]. It gave generous allowance to the 2nd Applicant’s tender age and vulnerability. It assessed her case separately from her mother’s. It assessed her risks in Indonesia and India. It gave reasons for its finding. Applying the law applicable to non-refoulement protection to these findings of fact, the Board found the 2nd Applicant is not entitled to protection under any of the applicable grounds under the USM whether refouled to Indonesia or to India. These are mixed finding of fact and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decisions. The Court could detect no error of law or procedural unfairness in the Decisions. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is un-reproachable. The proposed judicial review has no realistic prospect of success.
Conclusion
15. For the above reasons, the Applicant’s application for leave to apply for judicial review of the Board’s decision.
Dated the 18th day of May 2026
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( Seline Sze )
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 18/05/2026
Endang-Winarni
Jagdesh Kumar Anindiya Jasmine Sharma
Applicant’s ref. no:
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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 18/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17182/20/9/1/I1869
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 295/20 (Formerly as RBCZ/10248/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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