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HCAL 119/2023
[2025] HKCFI 6263
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 119 of 2023
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BETWEEN
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Sugianah |
1st Applicant |
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Yastoni Winaya Paradista, |
2nd Applicant |
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suing by her mother and next friend, Sugianah |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
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 Levy:
1. The Form 86 be amended accordingly on the court’s own motion.
2. The 1st and the 2nd applicant’s application for leave to apply for judicial review is dismissed.
Observations for the Applicants:
Background
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 30 January 2023, the 1st applicant (“A1”), for herself as well as on behalf of the 2nd applicant (“A2”), her daughter, a minor, applied 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 6 January 2023 (“Board’s Decision”) dismissing the applicants’ appeal against a decision of the Director of Immigration (“Director”) dated 11 November 2021 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000119_2023_files/the_Board's_Decision.pdf
2. In the Form 86, the applicant named the Board as the interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.
3. The basis of the applicants’ claim were that, if refouled to Indonesia, both of them would be harmed or killed by A1’s ex-husband. 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.
4. On 3 July 2025, the applicant filed an affirmation, applying for the cancellation of all the non-refoulement claims, including the Leave Application. Since A2 is a minor, and it was not clear if A1 was also making an application to withdraw on behalf of A2, I directed a hearing be held to dispose of the withdrawal application.
5. The applicants were absent from the scheduled hearing on 16 September 2025. A1 attended the re-fixed hearing in person on 2 December 2025. At the adjourned hearing, A1 appeared for herself as well as on behalf of A2.
6. 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 stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra). I will further amend the title of the Form 86 to read as “A2, suing by her mother and next friend, A1”.
7. At the hearing, A1 confirmed that she was making an application to withdraw for herself as well as on behalf of A2. Her parents had asked them to go home and the fear for the ex-husband was gone. She further confirmed that she made the application voluntarily and that she understood the consequence of the withdrawal.
Discussion
8. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
9. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation contained no such grounds.
10. 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.[3] In the present case, the Board had separately assessed the claims made by A1 and A2. It found that there was no reliable evidence to show that the applicant’s ex-husband would harm or kill either A1 or A2 if refouled as there was no past history of violence towards A1. It concluded that the alleged fear of harm was speculative. The Board therefore concluded that the applicants would not face a real risk of harm if refouled. It further found that state protection and internal relocation were both reasonably available. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
11. 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 applicants have 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 applicants’ 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[4].
Withdrawal application
12. 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.
Orders
13. The Form 86 be amended accordingly on the court’s own motion.
14. The 1st and the 2nd applicant’s application for leave to apply for judicial review be dismissed.
Dated the 23rd day of December 2025
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(Alfred Chan)
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 Applicants:
If leave has been granted, the Applicants or the Applicants’ 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 Applicants
on 23/12/2025
Sugianah
Yastoni Winaya Paradista
Applicant’s ref. no:
Nil |
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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 23/12/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19307
USM 19308
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1827/21 & QA T/C 1828/21 (formerly RBCZ 358/20 & RBCZ/5000138/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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