YULIANAH acting as next of friend of HASHMI IMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1518/2025

[2026] HKCFI 3524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1518 of 2025

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 oral submissions by the Applicant 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 case should be considered together with HCAL 346 of 2022 because the applicant here is the son of the applicant in that action and his claim relies on his mother’s facts in support of her claim. His mother is acting as the next of friend for the applicant in this action.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 16 June 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

3.  The applicant’s mother and the applicant appeared before the Court on 3 June 2026.

4.  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 1^st named is the mother acting as next of friend of the applicant.

The applicant

5.  The applicant is a national of Indonesia. He is an illegal immigrant. His mother acted on his behalf had lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by her husband’s creditor because the creditor will also harm or kill her if she returns to Indonesia.

6.  Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001518_2025_files/the_Board's_Decision.pdf

The Director’s Decision

7.  The Director considered the applicant’s claim 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”).

8.  By way of Notice of Decision dated 31 March 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 15 May 2025, the Board conducted an oral hearing for his appeal. His mother attended the hearing and had given oral evidence and answered the Board’s questions.

10.  Having considered the evidence, the Board made the findings below.

(1)  The applicant’s mother confirmed that the applicant relied on her non‑refoulement claim and there was no separate and individual risk of harm to the applicant from those of hers. [21]

(2)  The Board had made extensive research on the country of origin information (“COI”) and found that there was no evidence to show that the applicant would be discriminated by other people in Indonesia due to his illegitimate status. [111]

(3)  COI also showed that reasonable state protection is available if he returns to Indonesia with his mother. [113]

(4)  Internal relocation is viable for the mother and the applicant. [114]

11.  For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 2 July 2025 for leave to apply for judicial review of the Board’s Decision.

13.  In support of his application, the applicant’s mother has raised that she wanted to talk to the adjudicator again.

DISCUSSION

14.  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 applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, I asked the applicant’s mother if she wanted to raise any child-specific issues, which were not put before the Board because of lack of legal representation and she wanted to bring to my attention. She said that her creditor might harm him. Her family members would not accept him and she would have no place to live.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.  The grounds under paragraph 13 and 15 are not valid to challenge the Board’s Decision.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

20.  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