Muji Royatin Bt Rohmatsapadi Acting As the Next Friend of Muji Royatin Bt Rohmat Sapadi Reyshaka Arbab Zubair v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 183/2023 [2026] HKCFI 4590 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 183 of 2023 BETWEEN
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:
Observations for the Applicant: THE APPLICATION 1.The 1st named applicant is the mother (“the mother”) acting as the next friend of the 2nd named applicant (“the son”), who was born on 27 June 2020 and is now 7 years old, a minor. 2.On behalf of the son, the mother applies for leave to apply for judicial review of the Decision dated 12 January 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the son’s appeal against the Director’s Decision as described below. 3.The son’s claim relies on the facts of his mother. 4.The mother had lodged her claim previously and her claim was rejected by the Director of Immigration (“the Director”). She appealed to the Torture Claims Appeal Board (“the Board”). The Board dismissed her appeal. She applied to the Court of First Instance for leave to apply for judicial review of the Board’s decision. The Court of First Instance dismissed her application. 5.She applied to the Court of First Instance for extension to appeal against its decision. The Court of First Instance refused her application. She appealed to the Court of Appeal. By Judgment dated 27 May 2022, the Court of Appeal dismiss her appeal. She filed a Notice of Motion with the Court of Appeal for leave to appeal to the Court of Final Appeal. The Court of Appeal dismissed her Notice of Appeal by Judgment dated 23 February 2023. 6.Insofar as the mother’s claim is concerned, her claim has been concluded. 7.The applicant was absent at the hearing on 5 August 2026. 8.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 1st name applicant is the mother acting as the next friend of the applicant. The applicant 9.The applicant is a national of Indonesia. He is an illegal immigrant. He 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 the wife of his father, who was not legally married to his mother. The applicant also fears that, being mixed race and born out of wedlock, he will be discriminated by the society in Indonesia if he returns there with his mother. 10.Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000183_2023_files/the_Board's_Decision.pdf The Director’s Decision 11.The Director considered the applicant’s claim in relation to the following risks:
12.By way of Notice of Decision dated 2 August 2021 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated. The Board’s Decision 13.On behalf of the applicant, the mother appealed the Director’s Decision to the Board. On 22 July 2022, the Board conducted an oral hearing for his appeal. The mother had given oral evidence and answered the Board’s questions. 14.Having considered the evidence, the Board found that there will be a risk of discrimination because of the applicant’s illegitimate status, but that risk is not so serious as to rise to the level of serious harm [49]; as to the risk of direct violence to him or his mother, the risk is farfetched because there has never been any real threat of violence from anyone [50]; that state protection will be available to him and his mother if they return to Indonesia [51] & [56]-[57]; and that internal relocation is viable [62]. 15.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision. Application for leave to apply for judicial review of the Board’s Decision 16.On behalf of the applicant, the mother has filed Form 86 dated 8 February 2023 for leave to apply for judicial review of the Board’s Decision. 17.The mother has raised that the adjudicator failed to consider the claim. She had some documents written in Indonesian language, which the adjudicator did not understand. She asked for assistance from the translator, who refused to render assistance to her. DISCUSSION 18.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 20.The Board had taken on board the decisions in relation to child specific issues of 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. 21.Since the mother’s claim had failed, the applicant has no factual basis to support his claim. The remaining issue for the Board is whether there is any child specific issue, which would support his claim. The Board had considered his case and concluded that there will not be any such issue. 22.The reasons under paragraph 17 are relating to the mother’s case, which had been determined by the Board and the courts in her own claim. They are not relevant to the child specific issues in this case. 23.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 24.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application. 25.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 19th day of August 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
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Cases cited in this judgment