Tita Rosita Sari v Tita Rosita Sari acting as the next friend of Tita Rosita Sari Sewana Al Meera

HCAL 1556/2025

[2026] HKCFI 3441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1556 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.  Leave to apply for Judicial Review be refused.

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 daughter’s application a nullity.

Observation for the Applicant:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her daughter, born on 2 September 2023 (“her daughter”). They are illegal immigrants. The mother gave birth to her daughter in Hong Kong.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 2 July 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the mother.

3.The applicants did not ask for a hearing. I shall deal with their application on the papers.

4.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 proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

5.The applicants are nationals of Indonesia.

6.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by harmed or killed by the mother’s step-father and her husband in Indonesia because she had given birth to her daughter out of wedlock.

7.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/HCAL001556_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

8.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”).

9.By way of Notice of Decision dated 6 December 2024 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board. On 20 April 2025, the Board conducted an oral hearing for their appeals. The mother had given evidence and answered the Board’s questions.

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

(1)  The Board was not persuaded that the mother’s husband had threatened to kill her and her daughter if they return to Indonesia. [67]

(2)  The Board considered the step-father’s threat was only an angry outburst, which will not materialize to harm or kill her and her daughter. [72]

(3)  Internal relocation will be viable. [74]-[75]

(4)  State protection will be available if they return to Indonesia. [77]

(5)  As to her daughter, the NGOs and the government may provide the mother and her daughter education and child assistance if in need. [80]

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

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 8 July 2025 for leave to apply for judicial review of the Board’s Decision.

14.In support of their application, the mother did not raise any ground to challenge the Board’s Decision. She had only said that her life and her daughter will be in danger if they return to Indonesia.

DISCUSSION

15.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).

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

17.It is apparent that the applicants were not 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 in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more vulnerable to the applicable risks than the parent.

18.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.”

19.The Board had considered the child’s situations separately. I am satisfied that the Board had applied advanced standards of fairness in the assessment of the application.

20.The only comment I wish to make here is the Board’s advice to the mother at the hearing. It informed her that she was not obliged to give evidence, or answer questions. Whilst giving such advice, the Board should draw her attention to sections 37ZA, her duty to substantiate her claim and 37ZD(1)(a):

“37ZD Credibility of claimant

(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(a) any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

(i) conceal information;

(ii) mislead; or

(iii) obstruct or delay the handling or determination of the claimant’s torture claim;”

21.However, the absence of the proper directions or advice for the mother in this case does not affect the Board’s Decision.

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

DISPOSITION

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

24.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s 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