Lilis Juniyanti and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 451/2025

[2025] HKCFI 3694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 451 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicants in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.By a “notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 18 February 2025, the applicants 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 17 December 2024 (“Board’s Decision”) dismissing the 2^nd applicant's appeal against a decision of the Director of Immigration (“Director”) dated 8 August 2022 (“Director’s Decision”) rejecting the 2^nd applicant's non‑refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000451_2025_files/the_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000451_2025_files/Earlier_Board's_Decision.pdf

2.The 1^st applicant is an Indonesian national of Sundanese ethnicity, who has converted from Islam to Christianity. The 2^nd applicant is the 1^st applicant’s minor daughter born in Hong Kong out of wedlock and whose father is Indian. The whereabouts of the 2^nd applicant’s father are unknown.

3.The Board rejected the 1^st applicant’s non-refoulement claim in a prior decision dated 17 December 2018, and her application for leave to apply for judicial review was dismissed on 13 January 2021 in HCAL 2974/2018. The Board’s decision in relation to the 1^st applicant is not the subject matter of the present legal proceedings. Hence, the only applicant in the Leave Application is the 2^nd applicant.

4.In the Form 86, the Board and the Director are stated as the proposed respondents and the Board as the interested party. The Board should have been the proper respondent and the Director the interested party. Further, as discussed in the preceding paragraph, the 1^st applicant has also been improperly joined as a party to these proceedings. In the circumstances, I order the amendment of the Form 86 accordingly by removing the name of the 1^st applicant, and amending the names of the respondent and the interested party.

5.The Board’s 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.

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]. As the 2^nd applicant was not legally represented, the court had written to the original 1^st applicant to remind her to approach the Legal Aid Department or to engage a private lawyer to represent the 2^nd applicant.

7.At the scheduled a hearing on 29 July 2025, the 1^st applicant attended in person on behalf of the 2^nd applicant. 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).

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.

10.In the Form 86 and supporting affirmation, the 1^st applicant did not raise any grounds for judicial review on the behalf of the 2^nd applicant.

11.At the hearing, this court asked the 1^st applicant whether she had any grounds she wished to submit in support of the Leave Application. The 1^st applicant submitted that the 2^nd applicant was still young and if she were refouled, she had no place to stay.

12.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 found that there was no risk of harm to the 2^nd applicant from the 1^st Applicant’s moneylender, the 1^st applicant’s family and her community. The Board did not accept that reasonable state protection would not be available. The Board also found that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

13.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Board’s Decision. I find the Board, after having considered the submissions from the legal representatives of the 2^nd applicant and the Director, was entitled to conclude that there was a lack of harm upon having taken into account of the 1^st applicant’s case, the extensive COI specifically in relation to the children born out of wedlock, the risk of harm on the 2^nd applicant of being raised as a Christian, the issue of attire and the risk of harm from the moneylender. The 1^st applicant advanced no grounds at all on behalf of the 2^nd applicant. I find that the 1^st applicant (on behalf of the 2^nd applicant) has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The 2^nd applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

14.The Form 86 be amended on the court’s own motion.

15.The application for leave to apply for judicial review be dismissed.

Dated the 22^nd day of August 2025

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