Binti Suwardi Ida Purwati 1st Applicant Ripon Naylaa Aisha Rahim by Binti Suwardi Ida Purwati, her next friend, Binti Suwardi Ida Purwati, Ripon Naylaa Aisha Rahim by Binti Suwardi Ida Purwati, her next friend
Torture Claims Appeal Board
- Michael WONG
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HCAL 588/2020 [2026] HKCFI 115 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 588 OF 2020
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:
Observations for the applicants: The Leave Application 1. By way of Form 86 dated and filed on 9 April 2020, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 2 March 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2. The Board found that the 1st applicant’s claim for non-refoulement protection failed on all the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”), and that the 2nd applicant’s claim failed on all the applicable grounds (including Torture Risk). Hence, the Board rejected the applicants’ appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 19 March 2018, which rejected their non-refoulement claims. 3. The 1st applicant had previously made a torture claim and the claim was rejected by the Director on 24 May 2013 (“the Director’s Previous Decision”). The Board dismissed the applicant’s appeal regarding the Director’s Previous Decision on 11 September 2013. 4. Thus, the 1st applicant’s Torture Risk had been finally determined and it was not necessary for the Board to deal with it again in the Board’s Decision. The 1st applicant’s appeal/petition was hence assessed on her BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4] only. Amendments 5. The 1st applicant wrongly spelt her name as “BINTI SUWARDI Ida Purwat” in the title of her Form 86 and her supporting affirmation dated 9 April 2020, when her name should be “Binti Suwardi Ida Purwati”. 6. The 2nd applicant is a minor and represented by her mother, ie the 1st applicant, as her next friend. Thus, her name should be stated in Form 86 as “Ripon Naylaa Aisha Rahim by Binti Suwardi Ida Purwati, her next friend”. 7. In Form 86, the applicants named the Director as the putative respondent and did not name any putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party. 8. Thus, on this court’s own motion, the name of the 1st applicant is amended to “Binti Suwardi Ida Purwati”, the name of the 2nd applicant is amended to “Ripon Naylaa Aisha Rahim by Binti Suwardi Ida Purwati, her next friend”, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party. The applicants’ case 9. 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. 10. In sum, the 1st applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by a man named Ansori due to her refusal to marry him in approximately 1994. 11. The 2nd applicant is the 1st applicant’s daughter, born in Hong Kong on 15 July 2016. The 2nd applicant’s father is a Muslim from Bangladesh and also a torture claimant himself. The 1st applicant met him in Hong Kong and they married in accordance with Islamic marriage rights in Hong Kong. It was the 1st applicant’s biggest fear to be returned to Indonesia without a husband. 12. The 1st applicant also feared that upon refoulement to Indonesia, the 2nd applicant would be the subject of discrimination by her family and by the neighbourhood due to her being of mixed ethnicity and born out of wedlock. As far as relocation is concerned, it is the 1st applicant’s case that she has no friends or family living in other parts of Indonesia, neither does she have the financial capability to sustain her and the 2nd applicant’s living. Oral hearing 13. The applicants requested for an oral hearing of the Leave Application and their case was heard on 9 December 2025. 14. The 2nd applicant is a minor and was represented by her mother, ie the 1st applicant, at the hearing. However, she should have legal representation under Order 80, rule 2 of the Rules of High Court. The 1st applicant confirmed at the hearing that the application for legal aid for the 2nd applicant was refused, and she decided not to engage any private lawyer to represent the 2nd applicant in the present proceedings. 15. Since the 2nd applicant did not have any legal representation, this was an irregularity under the rules as aforesaid. However, this court was of the view that the case should proceed and the 2nd applicant would not be prejudiced. The irregularity was hence waived. 16. When this court asked the applicants for the grounds of their intended judicial review, the 1st applicant merely handed a written submission to this court and said that she and the 2nd applicant would rely on the grounds stated therein. Apart from that, she had nothing else to say. Grounds for judicial review 17. 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). 18. The applicants did not advance any ground for their intended judicial review in Form 86, nor in the 1st applicant’s supporting affirmation dated 9 April 2020. 19. As mentioned, the 1st applicant submitted a written submission to this court at the oral hearing and confirmed that both she and the 2nd applicant would rely on the grounds stated therein without further elaboration. 20. In the written submission, the 1st applicant just mentioned some general grounds commonly used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations. She did, however, mention that the Board did not provide legal representation to her and so she had to act in person at the Board’s hearing. She also asserted that the Board did not appear to have considered her claim on humanitarian ground. 21. The grounds that were asserted for the 2nd applicant included that (1) the Director had erred in law by failing to conduct a child-specific assessment of the risk of harm for the 2nd applicant; and (2) the proceedings before the Board were procedurally unfair due to a lack of legal representation for the 2nd applicant as a minor. Discussion 22. This court will first deal with the 2nd applicant’s Leave Application. 23. The 2nd applicant was about two and a half years old when her case was heard by the Board on 29 January 2019. This court notes that the Board rejected her claim for the reasons that:-
24. In dismissing the 2nd applicant’s claimed threat of being the subject of discrimination due to her mixed ethnicity, this court notes that the Board made this conclusion based on its finding that the fear was only speculative without further elaboration. 25. However, the Board did not consider whether the 2nd applicant was actually born out of wedlock. Although the 1st applicant married the 2nd applicant’s father in accordance with Islamic marriage rights in Hong Kong, it is not clear whether the marriage was legally valid in Hong Kong and in Indonesia. If not, the 2nd applicant would be an illegitimate child. 26. There was no indication that the Board had ever considered country information regarding discrimination to children born out of wedlock and/or of mixed ethnicity in Indonesia. The Board had only considered the Country Reports on Human Right Practices for 2016 (Indonesia) issued by the US Department of State, which stated that “the government officially promotes racial and ethnic tolerance … The law prohibits discrimination in employment based on sex, race, ethnicity, social origin, disability religion and political opinion”. This report was concerning promotion by the government and prohibition in employment, which was not really relevant to the 2nd applicant’s situation when she was born out of wedlock and the discrimination could be from the family and the neighbourhood. 27. Thus, the Board’s conclusion that the 2nd applicant’s fear of discrimination and/or persecution was mere speculation does not appear to be well-founded and could in fact be irrational. 28. Further, the 1st applicant had claimed that internal relocation was not feasible because she had no friends or family living in other parts of Indonesia, nor did she have the financial capability to sustain her and the 2nd applicant’s living. However, the Board’s conclusion regarding the viability of internal relocation for both applicants was based only on its finding that the applicants’ fear of being contacted by Ansori could be avoided by relocation, and that Indonesia was a large country with huge population. 29. It seems that the Board did not address the issue of reasonableness and/or assess the hardship the applicants, especially the 2nd applicant, might face if they were to be relocated. 30. Thus, the Board’s conclusion on the viability of internal relocation for both applicants could be irrational. 31. Moreover, as the 2nd applicant was not legally represented before the Board, it is arguable that her case might not have been properly put forward before the Board. As held in the case of Fabio Arlyn Timogan[5], “Children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf” and “When one is dealing with children claimants of tender age, serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director”. 32. Thus, this court is of the view that there are reasonably arguable grounds in respect of the 2nd applicant’s case, and leave should be granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision concerning her own case. 33. In respect of the 1st applicant’s case, her danger from Ansori had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in a judicial review. 34. As said, the 1st applicant’s grounds for judicial review were mainly general accusations against the Board without any particulars or any regard to her own situations. 35. They included allegations that the Board was in breach of procedural fairness, the Board’s Decision was Wednesbury unreasonable and irrational, the Board failed to apply high standards of fairness, the Board failed to give any, or had given insufficient reasons for dismissing her appeal/petition, etc. 36. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 37. Thus, the general accusations which contained only “keywords” cannot assist the 1st applicant. 38. As to the complaint of the lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicants in the first tier of the screening process when their non-refoulement claims were assessed by the Director. 39. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation. 40. As to the complaint that the Board did not consider her claims on humanitarian ground, this court notes that 1st applicant had claimed that her biggest fear was to be returned to Indonesia without a husband. The Board indeed, had not considered this aspect of the 1st applicant’s claim in the Board’s Decision. 41. However, family unity rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong (see Comilang & Ors v Director of Immigration [2019] HKCFA 10). Thus, even if the Board had considered the 1st applicant’s fear of separation from her husband, the fear was not a ground for claiming non-refoulement protection. 42. It is therefore this court’s finding that the 1st applicant has failed to establish any valid ground for challenging the Board’s Decision. 43. The role 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. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 44. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the 1st applicant for her intended judicial review. 45. In assessing the appeal by the applicants, the Board held an oral hearing on 29 January 2019. The 2nd applicant was represented by the 1st applicant. Thus, the applicants were given the chance to present their cases to the Board in person. 46. As can be seen from the Board’s Decision, the Board had considered the 1st applicant’s fear of being harmed or killed by Ansori but found that it was some 20 years ago since she had had any contact with him. Thus, the Board was satisfied that any threats that might have existed from him in the past had long since disappeared. 47. The 1st applicant did not lodge her torture claim until 2012, some 13 years after her departure from Indonesia. The Board rejected the 1st applicant’s explanation that she did not know about torture claims beforehand. The very serious delay in lodging her claim for non-refoulement protection cast doubt on the veracity of her claims. 48. The Board also found that the 1st applicant’s claims regarding her experience with Ansori were no more than bare assertions which were based on hearsay and were unsupported by any admissible evidence whatsoever. 49. Given the above findings, the Board was not persuaded even to the low standard required that the 1st applicant would be subjected to any of the proscribed forms of harm under the USM. Thus, the Board rejected the 1st applicant’s claim for non-refoulement protection on the grounds of BOR 2 Risk, BOR 3 Risk and Persecution Risk. 50. In fact, given its well-founded rejection of the 1st applicant’s claims, it was not necessary for the Board to consider internal relocation for the 1st applicant. Internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755). 51. As discussed above, it seems that the Board did not address the issue of reasonableness or assess any hardship the applicants, especially the 2nd applicant, might face if they were to be relocated. The Board’s conclusion in terms of the viability of internal relocation for both applicants, including the 1st applicant, is arguable. 52. However, this court finds no flaw in the Board’s finding that the 1st applicant was lacking in credibility and its conclusion that the 1st applicant was not at risk of any of the proscribed forms of harm from Ansori under the USM. 53. Hence, even if the 1st applicant could successfully challenge the Board’s finding on the viability of her internal relocation, her claim for non-refoulement protection still would not succeed. As aforesaid, it was in fact not necessary for the Board to consider the issue of internal relocation as far as the 1st applicant is concerned. 54. The 1st applicant’s claim for non-refoulement protection is doomed to fail. This court therefore considers it pointless to grant leave to the 1st applicant for judicial review in respect of the Board’s Decision only on the ground concerning internal relocation. 55. 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 claim and hence leave must be refused regarding her own application. Conclusion 56. For reasons aforesaid, the Leave Application in respect of the 1st applicant’s application is dismissed. Leave is granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision. 57. The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 21 January 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 7th day of January 2026
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 [1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. [2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [5] Fabio Arlyn Timogan and Others v. Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (27/11/2020, CACV32/2020) [2020] HKCA 971.
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