ASHRAF USAMA, suing by her mother and next friend, YANUAR FARIDAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2156/2024

[2026] HKCFI 2773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2156 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1. The applicants’ Form 86 be amended on the court’s own motion in terms of [2] and [3] in the Call-1 Form.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 November 2024, the minor applicant applied by his mother (“Mother”) for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 October 2024 (“Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“Director”) dated 20 November 2023 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002156_2024_files/the_Board's_Decision.pdf

2.  An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971 at [57].   Despite the non-compliance with the requirement, this court would treat the non-compliance with the rule as a mere irregularity, and proceed to deal with the Leave Application: see Fabio (supra).  Despite the treatment of the non-compliance as a mere irregularity, I am of the view that the title of the application needs to be amended to read as follows with the striking out of the descriptions of the 1^st and 2^nd applicants and substituting by “Applicant”:

“Ashraf Usama, suing by his mother and next friend, Yanuar Faridah”

3.  Further, in the Form 86, the applicant named the Board as the putative interested party in addition to it having been named as the putative respondent. As the Board should have been the proper putative respondent and the Director the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

4.  The basis of the applicant’s claim was that, if refouled to Indonesia, he would be harmed or killed by his mother’s creditor for an unpaid loan.   The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.  On 25 September 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw the Leave Application. Enclosed with the said letter was the Mother’s signed memo in the Indonesian language (together with an English translation) dated 6 August 2025. In the memo, the Mother stated that both herself and the applicant would like to withdraw the Leave Application as the issues in their home country had been resolved.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

6.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   Apart from stating that he would face the risk of being killed or harmed if refouled, the applicant’s Form 86 and the supporting affirmation provided no such grounds.  

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[4] In the present case, the Board accepted that the Mother was threatened and assaulted by the creditor in the past. However, the Board was satisfied that the applicant would unlikely be subjected to the risk of harm if refouled as there was reasonable availability of state protection and internal relocation.     These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

10.  Although the Mother had included herself in the memo to apply for with the withdrawal of the judicial review, I believe that it was an error as the Mother’s application for leave to apply for judicial review in the case of HCAL 495/2024 had already been dismissed by a court on 14 January 2026. Hence, the withdrawal application was made by the Mother on behalf on the applicant only.

11.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Recent removal

12.  On 20 November 2025, before the Mother and the applicant were removed, the Mother signed a standard form letter to the court, stating that she “chose not to provide any correspondence address for communication with the court and service of court documents.”

Orders

13.  The applicants’ Form 86 be amended on the court’s own motion in terms of [2] and [3] of the Call-1 Form.

14.  The applicant’s application for leave to apply for judicial review be dismissed.

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