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

HCAL 534/2026

[2026] HKCFI 2779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 534 of 2026

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 K.W. Lung:   

1.   Leave to apply for Judicial Review be refused; and

2.   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 2nd Applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st named is the mother (“the mother”) acting as the next friend of the 2^nd named as the applicant, her son, aged 5 (“the son”).  They are illegal immigrants. The mother gave birth to the son on 3 July 2020 in Hong Kong.  The applicant’s claim relies upon the facts of the mother’s claim in another action HCAL 1885 of 2018.

2.In HCAL 1885 of 2018, the mother was the applicant acting for herself and as the next friend of her another son born on 18 June 2016, aged 9 now (“the elder son”) as the next friend for leave to apply for judicial review of the Decision of Torture Claims Appeal Board (“the Board”) dated 14 May 2018, which dismissed their appeal against the Director’s Notice of Decision dated 17 August 2017, rejecting their non-refoulement claim.

3.This Court dismissed the application in HCAL 1885 of 2018 because the claim was unsubstantiated.  The mother and the elder son applied to the Court for extension of time to appeal.  This Court refused their application.  They appealed to the Court of Appeal.  By Judgment dated 11 April 2023 (“the Judgment”), the Court of Appeal dismissed their appeal.  It agreed with the Board’s finding of the facts and it concluded that the risk of either or both the mother and the elder son being subjected to serious harm by the family and/or her husband was remote.  See paragraph 29 of the Judgment [2023] HKCA 502.

4.The applicant now applies for leave to apply for judicial review of the Decision dated 19 September 2023 of the Board (“the Board’s Decision”), dismissing Notice of Decision of the Director dated 23 April 2021 (“the Director’s Decision”), which rejected his non-refoulement claim.

5.The applicant did not ask for a hearing.

The applicant                                                                                       

6.The applicant is a national of Indonesia, adopting the mother’s nationality.

7.The applicant lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by her husband’s creditor, her husband and her family because she was unable to repay her husband’s loan, and the son was born out of wedlock and mix-raced, thereby subjecting him to the applicable risks.

8.Details of the facts are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000534_2026_files/the_Board's_Decision.pdf

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 17 & 19 January 2023, the Board conducted an oral hearing for the appeal. The mother had given evidence and answered the Board’s questions.

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

(1)   The Board did not accept the mother’s evidence on the core facts of her claim and considered that her confused, inconsistent, vague and uncertain evidence was in part embellished, exaggerated and fabricated to create a claim that her son, the applicant is owed protection.  [84] & [85].  The Board had given its reasons in support of its findings.  See paragraphs 62-84 of the Board’s Decision.

(2)   The Board did not accept that the applicant’s relatives have threatened to harm the applicant if he returns to Indonesia.  [92]

(3)   The Board considered that the mother would not be subjected to the husband’s violence if she returns to Indonesia as her husband did not do anything to her after he knew her pregnancy with another man.  [93]

(4)   The Board did not accept that there are substantial grounds to believe that the applicant faces a real risk of being subjected to harm on the applicable risks. See [107] on Torture risk; [[121] on BOR 3 risk; [126] on Persecution risk; and [128] on BOR 2 risk.

13.For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

14.The mother filed Form 86 on 9 March 2026 for leave to apply for judicial review of the Board’s Decision.

15.The mother only stated she would apply for leave for judicial review of the Board’s Decision without specifying any reason against the Board’s Decision.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.The mother had raised the issue that the applicant would not be accepted by the whole community of her hometown; that he would be subjected to discrimination and possibly persecution.  In Muslim culture, people are not allowed to have illegitimate children out of wedlock.  There would be risks of her sons being beaten and separated from their mother. [28]

19.The Board had made enquiries with the applicant during the hearing and concluded that she and the applicant would not have any real risk of serious or significant harm if they return to Indonesia; that the applicant would be recognized as a citizen of Indonesia; and that there was no substantial ground to believe that the applicant would be at risk of serious harm from her husband and/or her family and/or the loan shark or the members of the community generally.  [54]-[61]

20.I consider that the Board had administered advanced standards of fairness in the assessment of the applicant’s claim.  I do not see any child specific issue not presented to the Board for consideration because of lack of legal representation for the applicant.  There is no reason for this Court to interfere with the Board’s findings.

21.The applicant fails to show that there is any realistic prospect of success in the proposed judicial review.

DISPOSITION

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

23.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 3^rd day of June 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