Tahir Kashif Acting As the Next Friend of Tahir Muhammad Arham Dar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 44/2026

[2026] HKCFI 2719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 44 of 2026

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;

Order by Deputy High Court Judge K.W. Lung:   

1.  The extension of time for the application for Judicial Review be refused;

2.  The application for leave to apply for Judicial Review be dismissed; and

3.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the Applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st named is the father (“the father”), a national of Pakistan, acting as the next friend for the applicant (“the son”), who is aged 6 now.

2.The son’s application relies on the facts of the mother, an Indonesian.

3.The applicant applies for leave to apply for judicial review of the Decision dated 24 May 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s refusal of his non-refoulement claim. His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 24 August 2023. His application was filed on 6 January 2026, which is late for more than 2 years and 4 months. This issue will be dealt with below.

4.The father appeared before the Court and informed me that the applicant is an autistic.

5.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 father is acting the next friend of the applicant, the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

6.His parents are illegal immigrants. Acting by his mother, the applicant 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 his mother’s ex-husband and money lenders if they were to return to Indonesia.

7.Details of the applicant’s case can be found in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000044_2026_files/the_Board's_Decision.pdf

The Director’s Decision

8.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”).

9.By Notice of Decision dated 1 February 2018 (“the Director’s Decision”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 3 May and 26 May 2022, the Board conducted an oral hearing. The applicant was represented by a duty lawyer. The Director was represented by a senior and a junior government counsel.

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

(1)  The applicant’s factual basis relies upon his mother’s facts.

(2)  His mother and her daughter had lodged a non-refoulement claim with the Director, who refused their claim. They appealed to the Board. The Board dismissed their appeal. The Board found that the risk posed by the creditor on the mother is low and she failed to prove real risk from her ex-husband if she returns to Indonesia. [10] & [16]

(3)  There was no evidence that the applicant will face real risk of harm from the mother’s family or his peers and villagers that warrants BOR 3 risk protection. [17] & [18]

(4)  The applicant can claim citizenship in Indonesia. [19]

(5)  State protection and protection from non-government organizations in Indonesia will be available if he returns to Indonesia with his mother. [27]-[32]

(6)  The Constitution of Indonesia provides education to the applicant. [34]

(7)  Internal relocation is viable. [38]

12.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

13.The applicant has filed Form 86 dated 6 January 2026 for leave to apply for judicial review of the Board’s Decision.

14.In support of his application, the father said he wanted to apply for leave for judicial review of the Board’s Decision, but did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

15.As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the father said he was also present before the Board. He had given full instructions to the duty lawyer and he had nothing to add.

17.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.”

18.It is clear that the Board had considered the applicant’s case separate from his mother’s claim and he was legally represented before the Board. The father has confirmed that the duty lawyer had presented the applicant’s case to the Board for its consideration.

19.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

21.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.

Dated the 20^th day of May 2026

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