Mohammad Aahana Albi Sayyad (A Minor, By Her Next Friend and Mother, Divi Diah Ningrum and Father, Mohammad Sharif) and Another v. Torture Claims Appeal Board

HCAL 3658/2019

[2025] HKCFI 6113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3658 OF 2019

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 counsel for the 1st and 2nd Applicants (“the Applicants”) and Mohammad Sharif in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave for the Applicants to apply for Judicial Review be granted;

2.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

3.  The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

4.  Costs be in the cause; and

5.  The Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

1.The Applicants are minor siblings at their present age of 7 and 11 born to their Indonesian mother (“Mother”) and Indian father (“Father”) in Hong Kong where both of their parents had earlier sought non-refoulement protection based on their own respective grounds, and upon subsequently giving birth to the Applicants, the Mother also raised a non-refoulement claim for each based on her own claim that if returned to Indonesia they would be harmed or killed by some loan sharks over some unpaid debts. They were all subsequently released on recognizance pending the determination of their claims.

2.The Mother who is now aged 37 was born in Banyuwangi, East Java, Indonesia where she was raised by her grandmother after her parents were divorced when she was small and that her mother had gone to another town to work in the factory.

3.In 2008 some men claimed to be loan sharks came to her grandmother’s home looking for her mother for repayment of some outstanding loans, and made threats against her, and to avoid these threats the Mother in 2010 departed Indonesia for Hong Kong to work as a foreign domestic helper, but when her employment contract was prematurely terminated on 10 February 2011, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest she then raised her non-refoulement claim on the basis of her fear of being harmed by those loan sharks if refouled to Indonesia, and while released on recognizance pending the determination of her claim, she met and formed a relationship with the Father who as noted above was also a non-refoulement claimant, and subsequently gave birth to their elder daughter, the second named Applicant (“A2”) on 19 August 2014, and their younger daughter, the first named Applicant (“A1”) on 3 June 2018, and for whom the Mother raised their non-refoulement claims respectively in 2014 and 2018 based on her own claim of fear of being harmed by those loan sharks if returned to Indonesia.

4.By a Notice of Decision dated 30 April 2015 the Director of Immigration (“Director”) rejected the joint claims of the Mother and A2 on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

5.In the decision the Director took into account of all the relevant circumstances of the claims of the Mother and A2 and assessed the level of risk of harm from those loan sharks upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those loan sharks to seriously harm or kill either of them other than to press the Mother for money, that in any event it was a private monetary dispute within the Mother’s family in Indonesia without any official involvement that state or police protection would be available to both of them if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 263 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Mother as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for those loan sharks to locate them.

6.On 11 May 2015 the Mother and A2 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, and for which they attended an oral hearing on 24 February 2016 before the Board during which the Mother gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 13 December 2016 their appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found the Mother dishonest and her alleged story unreliable, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong as well as her subsequent conviction of the offence of theft, that in any event there was no reliable evidence of the Mother or A2 ever been threatened or harmed by any loan sharks, nor is it accepted that they would still have any interest in locating them all over Indonesia or to have the resources or manpower to do so, and that there are places in Indonesia other than her home district for the Mother as an able-bodied young woman to relocate with A2 without undue hardship that their claims for non-refoulement protection failed on all applicable grounds.

8.Meanwhile the Director on 13 March 2017 on his own initiative invited the Mother and A2 to submit any additional facts which they may consider relevant to their non‑refoulement claims on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and after receiving no response or reply from them, the Director by a Notice of Further Decision dated 31 March 2017 also rejected their BOR 2 Claims upon finding that they had failed to establish a personal and real risk of being arbitrarily deprived of their life in violation of the BOR 2 ground upon their return to Indonesia.

9.Their subsequent appeal against the Director’s Further Decision was also dismissed by the same Board on 13 October 2017 upon finding that they had failed to establish their case under BOR 2 Risk.

10.Similarly by a Notice of Decision date 28 February 2019 the Director also rejected A1’s non-refoulement claim on all the applicable grounds upon arriving at the same assessments and determination of no real intention of those loan sharks to harm or kill her upon her return to Indonesia, and that both state protection and internal relocation alternatives would also be available to her to negate any such risk or threats from those loan sharks.

11.On 14 March 2019 the Mother also lodged an appeal for A1 to the Board against the Director’s decision, and for which the Mother also attended a hearing on 29 July 2019 before the same Adjudicator as before, and repeated her evidence for her claim of fear of A1 being harmed by those loan sharks if returned to Indonesia.

12.By a Decision dated 22 October 2019 the same Board also dismissed A1’s appeal upon making similar findings of no evidence of any real threats from any loan sharks against her or her mother, that in any event it is not accepted that those loan sharks would still have any adverse interest in her or her mother after all these years or to have the resources or manpower to locate them all over Indonesia, and that there are numerous places in Indonesia other than her home district for the Mother to safely relocate with A1 without undue hardship that A1’s appeal also failed on all the applicable grounds

13.Meanwhile the Mother’s own application for leave to apply for judicial review of the Board’s decision was refused by this Court on 20 April 2018 upon finding her proposed grounds not reasonably arguable for her intended challenge, that there was no error in the Board’s finding of the availability of internal relocation for her to move safely to other parts of Indonesia away from her home district to negate whatever risk that may arise from those alleged loan sharks that there was no prospect of success in her intended application (HCAL 817/2017 [2018] HKCFI 798), while her subsequent appeals against the Court’s decision were also dismissed by the Court of Appeal on 27 July 2018 (CACV 119/2018 [2018] HKCA 438) and 28 September 2018 ([2018] HKCA 626).

14.It is also of note that the Father’s own non-refoulement claim had also been rejected by both the Director and the Board in separate decisions, while his application for leave to apply for judicial review was also refused by this Court on 22 May 2023 (HCAL 461/2023 [2023] HKCFI 1353), and his subsequent appeals were also dismissed by the Court of Appeal on 1 November 2021 (CACV 287/2021 [2021] HKCA 1552) and by the Court of Final Appeal on 11 October 2022.

15.Which thus bring me to the present leave application of their daughters A1 and A2 for judicial review of all 3 decisions of the Board dated 13 December 2016 and 13 October 2017 as regard A2, and dated 22 October 2019 as regards A1 for whom the Mother on 9 December 2019 as her next friend filed a Form 86, and that she later on 16 January 2020 also sought to include A2 in the application, and upon subsequently being granted with Legal Aid and legal representation for their application, and with the Father later also allowed by this Court to join as their second next friend, the following grounds as amended are put forward for their intended challenge:

(1)  That the Board erred in treating their claims together with the Mother’s own claim as one composite whole, and failed to consider child-specific risks faced by either Applicants, contrary to the legal principles set out in Fabio Arlyn Timogan [2021] 2 HKC 458; and Re Jasvir Singh & Ors [2021] 3 HKC 126;

(2)  That the Board failed to properly evaluate the issue of state protection in light of the relevant COI in its 3^rd Decision;

(3)  That the Board failed to properly evaluate the issue of internal relocation for the Applicants in light of the relevant COI in any of its decisions;

(4)  That the Board departed from established principles concerning credibility assessment and took into account irrelevant matters in making adverse findings regarding the Mother’s evidence in the 1^st Decision.

16.By then A2 was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

17.As the last day of the three-month period for her to file her Form 86 as regard the 2 decisions of the Board of 13 December 2016 and 13 October 2017 fell respectively on 13 March 2017 and 13 January 2018, A2 was therefore at least 2 years late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

18.In A2’s case, a delay of 2 years must be considered as very substantial and inordinate, for which the Mother explained in her affirmation that her Legal Aid was only granted in late 2024, which was still a considerable delay as conceded by her assigned Counsel Mr Geoffrey Yeung who appeared for both Applicants to argue that A2 was and still is a minor, and being part of the same family with A1 and that their challenge of the decisions by the same Adjudicator were raised on the same grounds with strong merits especially the Fabio ground that time should accordingly be extended for A2.

19.The Fabio ground relied on by Mr Yeung of course refers to the legal principles set out by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the TCAB/NCPO [2021] 2 HKC 458, and Re Jasvir Singh & Ors [2021] 2 HKC126, where the same Court in the latter case summarized the proper approach for the consideration and determination of a minor’s non-refoulement claim as follows:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, 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 or to make meaningful submissions on their behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay attention to examine in the context of high standard of fairness whether the minor’s own non‑refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case of Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] – [53], [56] – [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

20.Mr Yeung submits in contrary to these legal principles that the Board erred in treating the Mother’s claim and the Applicants’ claims as one composite whole, and in failing to consider child-specific risks faced by both Applicants upon their return to Indonesia, in particular arising from the fact that both were born out of wedlock and in mixed race to an Indonesian mother and an Indian father outside Indonesia in Hong Kong, which may raise various important issues of statelessness or legitimacy, as well as risk of harm or obstacles in state protection or internal relocation which were available to their mother but would require separate consideration from her situation and specific to the situations of both A1 and A2 which the Board failed to do in its assessment of their claims: see Re Siti Naisah [2021] HKCA 33; Novi Azizah & Ors v TCAB [2021] HKCA 1910; and Dian Lestari & Anor v TCAB [2025] HKCA 39.

21.Mr Yeung further submits that the Board in disbelieving the Mother’s claim as being dishonest and her failure to raise her claim as soon as she arrived in Hong Kong as well as her subsequent conviction of theft but erred in law in failing to make proper findings as to the core substance of her claim and evidence of being threatened harassed or assaulted by those loan sharks that its credibility finding in its decisions involved public law errors.

22.Upon close scrutiny of all 3 decisions of the same Adjudicator as noted above, and although they were made before the Fabio decision, I am of the view that Grounds (1) to (3) of the Applicants are reasonably arguable for their intended challenge of the Board’s decisions in that the Board failed to separately and/or properly consider and determine those underlying matters specific to the personal situations of either A1 or A2 as identified by Mr Yeung in its determination of their claims, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

23.As for the remaining Ground (4) on the Board’s assessment of the Mother’s credibility as to her claim, I do not find it relevant to the Applicants’ intended challenges given the results of the Mother’s unsuccessful leave application for judicial review and subsequent failed appeals as regard her own claim.

24.Accordingly I extend time to the application of A2, and grant leave to both A1 and A2 to apply for judicial review of all 3 decisions of the Board on Grounds (1) – (3) as stated above, and direct that they shall file and issue the originating summons within 14 days, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party, and that there be Legal Aid Regulations for their own costs.

Dated the 9^th day of December 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