Sri Setiyani acting as the next friend of Mohamed Siyan Fathima Shazana Febiyan v Sri Setiyani acting as the next friend of Thajudeen Mohamed Shammas

HCAL 1471/2025

[2026] HKCFI 2554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1471 of 2025

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 Applicant being absent 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 applicants’ application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The applicants are minors. The 1^st applicant was born on 3 February 2009, aged 17 (“the daughter”); and the 2^nd applicant was born on 20 December 2010, aged 15 (“the son”). Under Order 80, rule 2 of the High Court Ordinance, Cap. 4A, they have to be represented by their mother as their next friend.

2.Their mother was an applicant in HCAL 2210 of 2019. This Court dismissed the mother’s application for leave to apply for judicial review of the Decision dated 13 December 2018 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the Notice of Decision dated 2 September 2016 and Notice of Further Decision dated 7 August 2017 of the Director of Immigration (collectively called “the Director’s Decisions”) on her non-refoulement claim.

3.In the Director’s Decisions and the Board’s Decision, the 1^st applicant and the 2^nd applicant were the parties. However, in HCAL 2210 of 2019, the mother did not join them as the applicants. This Court fixed a hearing for the mother to come to give reason therefor. However, she was absent. The Court decided to deal with the mother’s application for leave for judicial review of the Board’s Decision. The children are at liberty to take out their own application by their mother as their next friend later. See paragraph 3 of [2024] HKCFI 3340.

4.This Court dismissed the mother’s application. She appealed to the Court of Appeal. By Judgment dated 5 June 2025, the Court of Appeal dismissed her appeal. See [2025] HKCA 501.

5.By Form 86 filed on 25 June 2025, the children applied for leave for judicial review of the Board’s Decision. However, the mother’s name on Form 86 was deleted. She should be the next friend of the children. Form 86 should be amended accordingly.

6.The applicants’ application is late. The Board’s Decision was dated 13 December 2018. Their joint application is late. Their application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 13 March 2019. Their application was filed on 25 June 2025, which is late for more than 6 years and 3 months. This issue will be dealt with below.

7.The mother and the children are illegal immigrants. The children were born in Hong Kong. Their claims rely upon the facts of the mother’s claim.

8.The applicants did not ask for a hearing. As the children are now aged 16 and 17 respectively, I do not consider it necessary to call them to appear before the Court to make enquiry on the child specific issues for them.

9.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 mother is the next friend of the applicants.

The applicant

10.The applicants are nationals of Indonesia.

11.They lodged a non-refoulement claim, on the basis that, if refouled, the mother will be harmed or killed by a man called Rehman for failing to marry him as arranged and from her father and brother for marrying her current husband without their consent. She further stated that her children might experience discrimination as a result of mixed marriage and parentage. [22]

12.Details of the facts are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001471_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

13.The Director considered the applicants’ claims 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”).

14.By way of the Director’s Decision, the Director dismissed the applicants’ claims on all applicable risks because it was unsubstantiated.

The Board’s Decision

15.The applicants appealed the Director’s Decision to the Board. On 19 September 2018, the Board conducted an oral hearing for the appeal. The applicants and the mother were represented by a duty lawyer. The Director was represented by a Government Counsel. The mother had given evidence and answered the Board’s questions.

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

(1)  The mother was not a witness of truth and that she had failed to establish even a reasonable likelihood that her claims were true. The Board found no credence whatever could be given to any of her assertions as to the circumstances in Indonesia. [64] The reasons in support of the findings are set out in paragraphs 41-63.

(2)  The children, that is the applicants in this action, are automatically entitled to Indonesian citizenship. [68] This means the mother may return to Indonesia together with the applicants. [71]

(3)  On the issue of discrimination because of mixed marriage, foreign spouse or their children, the Board had, with the assistance of the legal representatives from both parties, researched on the country of origin information (“COI”), which states that there was a group of mixed marriage women who had fought for changes in discriminatory regulations relating to mixed marriages. There is no information to suggest such couples or children experience other serious forms of discrimination. [73]

(4)  The COI further states that there is nothing in any of the background information that suggests any serious discrimination against mixed nationality couples or their children. [74]

(5)  The Board therefore concluded that the mother and the children faced no real risk of any form of discrimination as a result of their mixed ethnicity of nationality upon travel to Indonesia. [76]

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

Application for leave to apply for judicial review

18.The applicants filed Form 86 on 25 June 2025 for leave to apply for judicial review of the Board’s Decision.

19.The mother has not raised any reason to challenge the Board’s Decision.

DISCUSSION

20.As mentioned in paragraph 6, 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 reasons for the delay and the prospect of success of the intended application. I shall consider these factors below.

21.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).

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

23.The delay for more than 5 years is serious. The applicants have not given any explanation for the delay. For this reason, this Court should not extend time for them to file their application.

24.It is clear the applicants and the mother were represented by a duty lawyer before the Board. The Board had rejected the mother’s claim because it did not accept the core facts in support of her claim. The applicants therefore have no factual basis in support of their claims, too. The Board had considered the child specific issues raised by their mother. There is no reason for this Court to interfere with the Board’s Decision.

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

DISPOSITION

26.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 their joint application.

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

Dated the 23^rd day of July 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