Ina Astuti and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 338/2026

[2026] HKCFI 3652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 338 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 1st Applicant, and the 2nd and 3rd Applicants being absent in open court;

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

1.  Leave for the Applicants 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 and 3rd Applicants’ application a nullity.

Observation for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her elder daughter, aged 14 (“the elder daughter”), and the 3^rd applicant, her younger daughter, aged 9 (“the younger daughter”). They are illegal immigrants. The mother gave birth to her daughters in Hong Kong. The applicants’ claims rely on the facts of the mother.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 4 December 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). This Board’s Decision was made under the following previous proceedings:

(1)  On 21 January 2013, the mother and the elder daughter lodged their torture claim with the Director of Immigration (“the Director”), who refused their application. They did not appeal.

(2)  Upon the commencement of the USM, the Director assessed the claim of the mother and the elder daughter under other applicable risks other than Torture risk, namely:

i.  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”);

ii.  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

iii.  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”).

(3)  By Notice of Decision dated 31 July 2015 (“the Director’s 1^st Decision”), the Director refused the claim of the mother and the elder sister because it was unsubstantiated.

(4)  The mother lodged another non-refoulement claim for the younger daughter on all applicable grounds including Torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

(5)  By another Notice of Decision dated 4 January 2018 (“the Director’s 2^nd Decision”), the Director rejected the younger daughter’s claim because it was unsubstantiated. The Director’s 1^st Decision and 2^nd Decision are called “the Director’s Decisions”.

(6)  The mother and her 2 daughters appealed against the Director’s Decisions to the Board.

(7)  The Board dismissed their appeals.

(8)  The applicants applied to the Court of First Instance for leave to apply for judicial review of the Board’s decision.

(9)  The Court of First Instance dismissed their application.

(10)  On appeal, the Court of Appeal allowed the appeal and gave leave to the applicants to apply for judicial review of the Board’s decision.

(11)  By consent, the Court made an Order dated 7 December 2022 to quash the Board’s decision dated 21 September 2018 and remit the applicants’ appeals to a Board of different constitution for a fresh determination.

(12)  The Board held a hearing on 19 November 2025 for re-hearing the appeal. At the hearing, the applicants and the Director were legally represented respectively.

(13)  The Board issued the Board’s Decision on 4 December 2025.

3.The applicants appeared before the Court on 15 June 2026.

The applicants

4.The applicants are nationals of Indonesia.

5.The applicants’ non-refoulement claim is on the basis that, if refouled, the mother will be harmed or killed by her husband because she did not remit money to him, she had given birth to the daughters with another man in Hong Kong, and she had converted into a Catholic. Further, the mother alleged that because of her apostacy, she will be discriminated. Her daughters will also be subjected to the same ill-treatments and discrimination because they were born out of wedlock.  

6.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/HCAL000338_2026_files/the_Board's_Decision.pdf

The Board’s Decision

7.The Board held a hearing on 19 November 2025 for the re-hearing of the applicants’ appeal. At the hearing, the mother had given evidence.

8.Having considered the evidence and legal submissions from the respective legal representatives, the Board made the findings below.

(1)  The mother’s problems are private matters relating to the family dispute with her husband in Indonesia. Religious discrimination is a Refugee Convention reason. [95]

(2)  The Board accepts the country of origin information (“COI”) that the Indonesian government has taken practical steps to improve the protection offered to its citizens, including women and children, the monitoring system to govern the professional conduct of the police force and to combat corruption. [107]

(3)  COI show that Indonesia is officially a religiously pluralist state. The constitution guarantees freedom of religion. [128]

(4)  Apostasy is not a crime in Indonesian. [129]

(5)  Christianity is Indonesia’s second-largest religion after Islam. [130]

(6)  The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008.[162]

(7)  The above COI show that reasonable protection is available to the mother and the daughters in Indonesia. [171]

(8)  Internal relocation is viable for the mother and her daughters. [172]

(9)  State protection is available to the daughters. [178]

(10)  There was no COI to show that illegitimate children in Indonesia would suffer from official or societal discrimination. [179]

9.For the reasons above, the Board dismissed their appeals and confirmed the Director’s Decisions.

Application for leave to apply for judicial review

10.The applicants filed Form 86 on 4 February 2026 for leave to apply for judicial review of the Board’s Decision.

11.In support of their application, the mother said that the Board’s Decision was not correct. She has attached a copy of the Board’s Decision to her affidavit.

DISCUSSION

12.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 applicants’ 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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. I asked the mother if there were any child-specific issues which were not brought to the Board’s consideration and she wanted to tell me. The mother said she had given full instructions to the duty lawyer to submit their cases to the Board for its consideration. She said that she had no hope in their application and she intended to return to Indonesia.

14.It is apparent that the applicants were legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 held that it is incumbent upon the Board to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parent.

15.The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53 further held:

“33. … 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 any 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.”

16.The applicants were legally represented. The mother had confirmed that she had given full instructions, including matters concerning her daughters to the duty lawyer, who had submitted their case to the Board at the hearing. Board had considered the daughters’ situations separately.

17.There is no reason submitted by the applicants that this Court should interfere with the Board’s Decision.

18.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

19.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

20.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughters’ application a nullity.

Dated the 30^th 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