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HCAL 25/2020
[2026] HKCFI 4892
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 25 OF 2020
BETWEEN
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Sri Utami |
1st Applicant |
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Diouf Seydina Ousmane Suyono (a minor) |
2nd Applicant |
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by Sri Utami, his next friend |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “Sri Utami” be named as the 1st applicant, the other applicant “Diouf Seydina Ousmane Suyono” be named as the 2nd applicant and the name of the 2nd applicant be amended to “Diouf Seydina Ousmane Suyono (a minor) by Sri Utami, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.
2. The 1st and 2nd applicants’ application for leave to apply for judicial review be dismissed.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 3 January 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 27 December 2019 (“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/HCAL000025_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicants’ claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 30 November 2017, which rejected the applicants’ non-refoulement claims.
Amendments
3. In Form 86, the applicants’ names were not stated properly. Thus, on this court’s own motion, “Sri Utami” is named as the 1st applicant. The other applicant “Diouf Seydina Ousmane Suyono”, who is the 1st applicant’s son and a minor, is named the 2nd applicant. The 2nd applicant is represented by the 1st applicant as his next friend and his name is amended to “Diouf Seydina Ousmane Suyono (a minor) by Sri Utami, his next friend” on this court’s own motion.
4. The applicants named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.
Legal representation of the 2nd applicant
6. The 2nd applicant is a minor born in Hong Kong out of wedlock on 29 May 2017 and is represented by the 1st applicant in the Leave Application.
7. The 1st applicant applied for legal aid for the 2nd applicant, but the application was refused by the Director of Legal Aid on 12 November 2025.
8. At the hearing before this court on 20 August 2026, the 1st applicant confirmed that she would not engage a private lawyer to represent the 2nd applicant.
9. As the 2nd applicant was legally represented before the Director, and no new evidence would be adduced 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
10. 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.
11. In gist, the applicants’ case was based on a number of heads of claim, namely that:-
(1) The applicants could not return to Indonesia because the 1st applicant feared harm from her ex-husband, whom the 1st applicant divorced in 2012.
(2) The 1st applicant also claimed to fear harm from unidentified creditors of her ex-husband, from whom her ex-husband allegedly borrowed money at some undisclosed time in the past.
(3) The 1st applicant feared that she would be discriminated for giving birth to a child (ie the 2nd applicant) out of wedlock. She also claimed that she would be punished by her family for the same reason.
(4) The 2nd applicant would face discrimination in Indonesia both because he is an illegitimate child and because he is a mixed-race child.
Oral hearing
12. The applicants requested for an oral hearing of the Leave Application and their case was heard on 20 August 2026.
13. As aforesaid, the 2nd applicant is a minor and was represented by her mother, ie the 1st applicant, at the hearing.
14. When this court asked the applicants for the grounds of their intended judicial review, the 1st applicant merely said that she wanted to stay in Hong Kong with the 2nd applicant, and that she wanted the 2nd applicant to receive education here.
15. In respect of the 2nd applicant’s case, the 1st applicant said that the 2nd applicant has a medical appointment in a Hong Kong hospital, and reiterated that she wanted the 2nd applicant to receive education here.
Grounds for judicial review
16. The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
17. The applicants did not advance any ground for their intended judicial review in their Form 86, nor in the 1st applicant’s supporting affirmation dated 3 January 2020. In the said affirmation, the 1st applicant only mentioned that she would like to reject and review the Board’s Decision as they disregarded their dangerous situation.
18. As mentioned, at the oral hearing, the 1st applicant merely said that she wanted to stay in Hong Kong with the 2nd applicant, and for the 2nd applicant to receive education here. She added that the 2nd applicant has a medical appointment in Hong Kong.
Discussion
19. First of all, the applicants’ danger upon returning to their country had been duly assessed but rejected by the Board. If they intend to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
20. The 1st applicant’s wish to remain in Hong Kong with the 2nd applicant and for the 2nd applicant to receive education here is not a ground for judicial review at all.
21. The fact that the 2nd applicant has a medical appointment in a hospital in Hong Kong is not a valid ground either. In any event, the 2nd applicant’s medical condition had not been presented before the Board for assessment of his non-refoulement claim.
22. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
23. Thus, none of the matters that were raised by the applicants in the 1st applicant’s supporting affirmation or at the oral hearing before this court could amount to any valid grounds for the intended judicial review.
24. 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).
25. Thus, it is not for this court to re-assess the applicants’ cases or their danger upon refoulement to Indonesia. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
26. In assessing the 1st and 2nd applicants’ appeal/petition, the Board held an oral hearing on 20 March 2019. However, the adjudicator who conducted the hearing was unable to complete the review, and their case was re-assigned to another adjudicator, who made the Board’s Decision after hearing the applicants on 5 December 2019. The applicants were present at both hearings of the Board, and thus were given the opportunity to present their cases to the Board in person.
27. As can be seen from the Board’s Decision, the Board had extensively analyzed every aspect of their claims and provided full and detailed reasoning in rejecting their claims for non-refoulement protection.
28. In respect of the 1st applicant’s claim regarding her fear of her ex-husband, the Board found her evidence regarding the basis of her fear of harm from him to be extremely vague and limited. The 1st applicant was unable to articulate why her ex-husband would wish to harm her if she returned to Indonesia. In light of their divorce in 2012 and the absence of any communication between the 1st applicant and her ex-husband since she came to Hong Kong in April 2012, including when she returned to Indonesia in 2014, the Board did not accept that the 1st applicant faced harm, let alone serious harm from her ex-husband, on her return to Indonesia.
29. Further, the Board was of the firm opinion that the 1st applicant had fabricated her claim that her ex-husband had already divorced his second wife in an effort to strengthen her case.
30. The Board also found that the 1st applicant’s evidence in respect of her fears that the 2nd applicant would be harmed by her ex-husband to be completely lacking, and for the same reasons, ie the significant number of years since their divorce and complete estrangement since then, the Board did not accept that the 2nd applicant faced harm from the 1st applicant’s ex-husband.
31. As to the second limb of the applicants’ case, namely that they feared harm from creditors of the 1st applicant’s ex-husband, the Board noted that the 1st applicant confirmed at both hearings before the Board that she did not fear harm from anyone other than her ex-husband in Indonesia. The Board found that this was inconsistent with the 1st applicant’ claim in her Non-refoulement Claim Form (“NCF”), and did not accept that the 1st applicant feared harm from unidentified creditors, from whom her ex-husband allegedly borrowed money at some undisclosed time in the past.
32. Regarding the third aspect of the 1st applicant’s claim that she feared punishment from her family, the Board noted that the 1st applicant’s evidence at the Board’s hearing was in contradiction with her written claims in her NCF. The 1st applicant testified at the Board’s hearing that her mother was aware of the existence of the 2nd applicant since his birth, which was directly contradicting her evidence in the NCF that she did not inform her parents her relationship with the 2nd applicant’s father (who is a Senegalese) and the birth of the 2nd applicant. Given the 1st applicant’s continued and very regular contact with her mother, as well as with her younger siblings, the Board did not accept that she would be punished by her family or that they would not accept her. The Board was satisfied on the evidence before it that the 1st applicant’s family residing in Kalimantan would support her and the 2nd applicant on their return.
33. The Board also addressed the 1st applicant’s claim that she might be discriminated and would not be accepted by the community because the 2nd applicant was born out of wedlock in paragraph 64 of the Board’s Decision. In short, while accepting that the 1st applicant might face some social stigma and discrimination for this reason, the Board did not accept that such difficulties amounted to any of the proscribed harms.
34. The Board was fully aware that the 2nd applicant’s case required a separate assessment of the risk of harm faced by a child having regard to his personal circumstances and the possibility of any child-specific risk of harm or discrimination, due to his being an illegitimate child and of mixed-race ethnicity.
35. In respect of the child-specific risk of the 2nd applicant due to his being born out of wedlock, on independent information, the Board accepted that he might be labelled as illegitimate and might experience social discrimination. However, the Board found no evidence from the independent information that such children would be at risk of physical harm and that the 2nd applicant would face a real risk of serious harm. The Board found that any discrimination or social stigma that the 2nd applicant might experience would not amount to any of the proscribed forms of harm.
36. Furthermore, the Board also assessed the 2nd applicant’s risk of being discriminated or harmed due to his mixed-race ethnicity in paragraph 66 of the Board’s Decision. The Board found from independent country of origin information (“COI”) that the overwhelming majority of Indonesians were unlikely to face official or societal discrimination on the grounds of race or ethnicity. The Board found the 1st applicant’s fear related to the 2nd applicant’s mixed-race status to be purely speculative. Based on independent information before it, the Board did not accept that the 2nd applicant faced harm based on his being of mixed-race.
37. In view of the Board’s findings as summarised above, the Board did not accept that the applicants’ claims were well-founded. Accordingly, the Board did not accept that the applicants faced a real risk of ill-treatment as claimed if they were to return to Indonesia.
38. Hence, the Board concluded that both the 1st and 2nd applicants were not entitled to non-refoulement protection under any of the applicable grounds.
39. Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found the applicants were not at a real risk of any of the proscribed forms of harm at the hands of the 1st applicant’s ex-husband, creditors of the 1st applicant’s ex-husband or anyone else in Indonesia.
40. As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicants have established that they qualify as refugees pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicants have established a real risk of persecution in their home area (see Gardi v SSHD [2002] 1 WLR 2755).
41. As it is the Board’s finding that the applicants had no real risk of any of the proscribed forms of harm in Indonesia, it is not necessary for the Board to consider internal relocation.
42. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicants’ appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
43. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
44. 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 applicants have failed to establish such a claim and hence leave must be refused.
Conclusion
45. For reasons aforesaid, the Leave Application in respect of both the 1st and 2nd applicants is dismissed.
Dated the 26th day of August 2026
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( Gladys LEE )
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 his 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/Handed to the applicants/the applicants’ solicitors
on: 26/08/2026
Applicants’ ref. no:
Nil |
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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: 26/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 9523/17/12/190/I935 &
USM 9524/17/12/191/I936
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2589/17
(Formerly RBCZ 10372/17) &
QA T/C 2590/17 (Formerly RBCZ 11419/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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