Case Document

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HCAL 626/2020

[2026] HKCFI 5017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 626 of 2020

BETWEEN

	ALAM ZAID MAHIR (a minor)	Applicant
	by MASRUROH IMAS, his next friend
	and
	TORTURE CLAIMS APPEAL BOARD	Putative
		Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by counsel for the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  The time for the applicant to apply for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 3 January 2020 be extended to 14 April 2020.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 3 January 2020.

3.  The applicant is directed to issue an originating summons for the intended judicial review on or before 16 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 14 April 2020, “MASRUROH IMAS” and “Alam Zaid Mahir” applied for leave to apply for judicial review in respect of a decision which was described as follows:

“Certiorari

To reject and review the decision made by the Torture Claims Appeal Board on my non-refoulement case on 23/9/2019.”

2.Masruroh Imas (“the Mother”) is the mother of Alam Zaid Mahir, who is a minor. In the original Form 86, the Mother named both herself and Alam Zaid Mahir as the applicants. The Mother, however, filed the supporting affirmation dated 14 April 2020 on behalf of her child Alam Zaid Mahir.

3.Subsequently, the Director of Legal Aid issued a Legal Aid Certificate to the Mother acting for Alam Zaid Mahir on 19 December 2025.

4.By way of an ex-parte summons dated 19 August 2026, Alam Zaid Mahir, through his legal representatives, applied for leave to amend Form 86. At the oral hearing of the Leave Application on 27 August 2026, the Mother confirmed that her own application for leave to apply for judicial review in respect of another decision of the Board had already been rejected in HCAL 337/2018, and hence she would not be an applicant in the Leave Application.

5.This court therefore granted leave to Alam Zaid Mahir to amend Form 86 as per the draft submitted to this court. After the amendment, Alam Zaid Mahir became the sole applicant in the Leave Application, and his name was amended to “ALAM ZAID MAHIR (a minor) by MASRUROH IMAS, his next friend”.

6.The decision in respect of which relief is sought in the Leave Application was also amended to “The Decision of the Torture Claims Appeal Board dated 3 January 2020” (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000626_2020_files/the_Board's_Decision.pdf

7.The Board decided that the applicant had not established his claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 December 2018 (“the Director’s Decision”) and affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Late application

8.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

9.However, the applicant filed Form 86 on 14 April 2020, which was 3 months and 11 days after the Board’s Decision (made on 3 January 2020). The applicant was hence late for 11 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

10.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.The Mother did not make an application for extension of time when she filed the Leave Application for the applicant.

12.At the oral hearing before this court on 27 August 2026, counsel for the applicant explained the delay by saying that the Mother had no knowledge of the legal procedure and was not aware that the Leave Application was made out of time.

13.Ignorance of the court’s procedure is generally not an excuse. However, as discussed below, this court finds that the applicant’s case does have merits and is therefore arguable. In view of the high standards of fairness required in the handling of cases concerning non-refoulement claimants, this court will not take issue on the relatively short delay of 11 days. Extension of time is therefore granted for the applicant to file the Leave Application on 14 April 2020.

The applicant’s case

14.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

15.In sum, the applicant claimed for non-refoulement protection because if refouled to Indonesia, he faced the risk of being killed or harmed seriously by the Mother’s former boyfriend Mohammad Andry (“Andry”), because the Mother refused Andry’s proposal to marry him and that the Mother might be required to pay off the debt her mother (“the Grandmother”) owed Andry.

16.The Mother updated her situation since the filing of the claim for the applicant. In the applicant’s Non-refoulement Claim Form, the Mother stated that although Andry no longer demanded her to marry him, Andry might still want her to shoulder the responsibility of paying off the debt owed by the Grandmother.

17.The applicant’s father is an Indian national. The Mother confirmed that it was her wish not to separate from the applicant and that it was her case that the applicant’s non-refoulement claim should be assessed on the basis that Indonesia was the risk state.

Oral hearings

18.The applicant requested for an oral hearing of the Leave Application, and his case was first heard on 16 September 2025, during which the Mother said that she did not receive the letter from this court informing her of the requirement for the applicant to be legally represented, as she had moved to another address.

19.As the Mother confirmed that she would apply for legal aid for the applicant, the case was adjourned to a date to be fixed, pending the outcome of the applicant’s legal aid application.

20.The hearing was resumed on 27 August 2026. As aforesaid, the applicant was granted legal aid and was represented by counsel at the hearing.

21.Counsel for the applicant submitted that the applicant would rely on only two grounds for the intended judicial review as follows:-

(1) The Board was irrational and/or failed to take into account relevant considerations in assessing the risk of harm that would befall the applicant in the event of his return to Indonesia, in that the Board’s finding that “nothing happened to the Grandmother on account of the default of loan repayments” was contrary to the evidence and plainly wrong; and

(2) The Board erred in law in failing to take into account the applicant’s personal circumstances when assessing whether he could be refouled to Indonesia without undue hardship.

Grounds for judicial review

22.The applicants are required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

23.In the Mother’s supporting affirmation dated 14 April 2020, she stated that she would like to reject and review the Board’s Decision as they disregarded the applicant’s dangerous situation.

24.However, as aforesaid, counsel for the applicant confirmed at the hearing on 27 August 2026 that the applicant would only rely on the two grounds as stated above.

Discussion

25.In relation to Ground (1), this court notes that when the Board assessed the applicant’s risk from Andry due to the Grandmother’s debt, the Board did state in paragraph 20 of the Board’s Decision that “Yet nothing happened to the Grandmother on account of the default of loan repayments.”

26.However, as stated in paragraph 5 of the Board’s Decision, the Mother’s evidence was that “the Grandmother was physically hurt two times. The first time was in 2014 and the other time was when she was hit from behind by another vehicle while cycling.”

27.As the Board did not challenge the credibility of the applicant’s case, its determination of the applicant’s risk arising from the Grandmother’s debt at paragraph 20 as aforesaid, ie “nothing happened to the Grandmother on account of the default of loan repayments”, was clearly contrary to the evidence and could be flawed.

28.As to Ground (2), namely that Board erred in law in failing to take into account the applicant’s personal circumstances when assessing whether he could be refouled to Indonesia without undue hardship, it was clear from the Board’s Decision that the Board had failed to take into account the applicant’s status as a child of mixed-race ethnicity.

29.The Board was fully aware that the applicant’s father is an Indian national and hence the applicant was of mixed-race ethnicity (see paragraph 2 of the Board’s Decision). Nevertheless, the Board did not consider the difficulties and/or discrimination he might face upon refoulement as a child of mixed-race ethnicity at all.

30.As held in Re Shahul Hameed Beer Mohamed and Others, 08/04/2026, CACV 77/2024, [2026] HKCA 632 and Re Bantigue Susan Banes and Another, 29/09/2025, CACV 234/2024, [2025] HKCA 853, the Board should have considered the applicant’s unique situation as a child of mixed-race, which might be a cause for discrimination.

31.It is therefore arguable that the Board had failed to give adequate consideration to the applicant’s claim when he is a child of mixed-race in view of the aforesaid cases.

32.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.

33.In relation to whether anything happened to the Grandmother on account of her default of loan repayments, it is this court’s view that it is reasonably arguable that the Board had made finding that was contrary to the evidence. The Board also committed an error of law in its assessment of the applicant’s claim when it failed to consider the applicant’s risk as a child of mixed-race ethnicity. Hence, leave should be granted to the applicant to proceed with the intended judicial review.

Conclusion

34.For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

35.The applicant is directed to issue an originating summons for the intended judicial review on or before 16 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 2^nd day of September 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on:02/09/2026 Applicants’ ref. no.: 25244-11-822-003-003		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 02/09/2026 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 15174/19/1/47/I600 Director of Immigration Putative interested party’s ref. no.: QA T/C 4754/18 (formerly RBCZ 10821/18) [T7S104] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)