Case Document

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HCAL 2127/2020

[2026] HKCFI 5278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2127 OF 2020

BETWEEN

	AA (a minor)	Applicant
	by Z, her 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. Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 25 August 2020.

2. The applicant is directed to issue an originating summons for the intended judicial review on or before 30 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicants:

The Leave Application

1.By way of Form 86 dated and filed on 23 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 25 August 2020 (“the Board’s Decision”).

2.The applicant is a minor born in Hong Kong in January 2016 and was just four years old when her case was assessed by the Board. The applicant was not legally represented and was only represented by her mother (“the Mother”) before the Board. Likewise, when the Leave Application was filed, the applicant was only represented by the Mother.

3.On 25 March 2026, the Director of Legal Aid issued a Legal Aid Certificate to the Mother acting for the applicant in these proceedings. Since then, the applicant was legally represented before this court.

4.By way of a letter dated 26 August 2026 from the applicant’s solicitors to this court, the applicant made an ex parte application to apply for an anonymity order, which was granted by this court on 31 August 2026. Thus, the applicant is referred to as “AA” and the Mother is referred to as “Z” in these proceedings.

5.By way of a summons dated 1 September 2026, the applicant applied for leave to amend Form 86. This court granted leave to the applicant at the oral hearing of the Leave Application on 10 September 2026 to amend Form 86 as per the draft submitted at the hearing. The Amended Form 86 was filed on 11 September 2026.

6.The Board found that the Mother had failed to establish that the applicant was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 September 2019 and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

7.The Mother was a domestic helper in Hong Kong who came from country I (the name of the country is not mentioned due to the anonymity order). The Mother met the applicant’s father (“the Father”) in Hong Kong. The Father is of a different nationality from the Mother. Although the Father and the Mother are of the same religion, they are from different branches.

8.In May 2010, the Mother and the Father went through a religious marriage in Hong Kong. However, their religious marriage was not a legal marriage in the Mother’s country and was not registered with the government of country I, nor in Hong Kong.

9.The Mother quitted her employment as a foreign domestic helper in October 2011.

10.After the marriage, the Mother gave birth to the applicant’s elder sister and the applicant in 2011 and 2016 respectively in Hong Kong.

11.The Mother and the applicant’s elder sister had lodged their non-refoulement claims separately from the applicant. Their non-refoulement claims were rejected by the Director on 12 November 2015, and, on appeal/petition, by the Board on 15 March 2017.

12.The applicant’s application for non-refoulement protection, as presented by the Mother, was based on the identical facts upon which the Mother and the applicant’s elder sister’s claims were based.

13.In sum, the applicant claimed for non-refoulement protection because if returned to country I, she together with the Mother and her elder sister would be killed or otherwise seriously harmed by either the Mother’s ex-husband, or by two of the Mother’s brothers, or by the religious people in the Mother’s home village.

14.The Mother claimed that her ex-husband, whom she claimed to have come from a brutal tribe, was furious upon hearing her decision to divorce him in 2010, and threatened that he would find the Mother and kill her when he was released from prison. Subsequently, their divorce was gone through by consent in 2010.

15.The Mother also claimed that her family, in particular her own father and two of her brothers, were angry with her as they considered that the Mother had brought shame to the family by marrying a foreigner without her father’s consent. The Mother’s father subsequently passed away. However, when the Mother informed her younger brother, with whom she had remained on friendly terms, in a telephone call of the applicant’s birth, the younger brother told her that two of their brothers were still angry with her for having brought shame upon her family in Indonesia, for which they would never forgive her. They forbade her to go back to their family home, and threatened that if she ever did so, they would kill her and her two daughters.

16.With regards to the fear from religious people in the Mother’s home village, the Mother claimed that she was informed by her younger brother that when the religious leader in their village heard that she had married a foreigner who belonged to a different branch of their religion, the leader visited their family home and expelled the Mother from the village, and said that the members of the religious group would throw stones at her if she returned to the village.

17.The Mother was also told by the younger brother’s wife that since she was not validly married to her present husband, she was regarded by the religious people in her home village as living in an extra-marital affair, for which they would punish her if she returned to the village with her daughters.

Oral hearing

18.The applicant requested for an oral hearing of the Leave Application and her case was heard on 10 September 2026.

19.As aforesaid, the applicant was granted legal aid on 25 March 2026. She was represented by counsel at the hearing.

20.Counsel for the applicant confirmed at the hearing that the applicant would rely on the grounds as stated in the Amended Form 86 for her intended judicial review, namely:-

Ground (1):  the Board failed to assess the applicant’s claim as a separate claim;

Ground (2):  the Board failed to examine the applicant’s personal circumstances or consider child-specific risks;

Ground (3):  the Board failed to consider child-specific country of origin information (“COI”); and

Ground (4):  the Board erred in finding that there were no proscribed grounds of persecution despite the applicant being of mixed race and being a child born out of wedlock.

21.Counsel submitted at the hearing that the first 3 Grounds were interconnected and were related to the Board’s failure to assess the applicant’s risk arising from her own circumstances, namely that she was a child born out of wedlock and of mixed race.

Grounds for judicial review

22.The applicant is 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.The applicant did not advance any ground in the original Form 86, nor in the Mother’s supporting affirmation dated 23 October 2020 submitted on behalf of the applicant.

24.In the Amended Form 86 under the heading “Grounds on which relief is sought”, counsel for the applicant advanced the grounds as stated above to challenge the Board’s Decision.

25.As aforesaid, counsel submitted at the oral hearing that the first 3 Grounds were interconnected and were related to the Board’s failure to assess the applicant’s risks arising from her own circumstances, namely that she was a child born out of wedlock and of mixed race.

Discussion

26.The applicant was only about 4 years old when her case was heard by the Board on 24 March 2020. She was not legally represented at the Board’s hearing and was only represented by the Mother. Thus, with the lack of legal representation, it was possible that the applicant’s case might not have been properly presented to the Board for its consideration.

27.As confirmed by counsel for the applicant at the oral hearing before this court, the applicant relied on the grounds as stated in the Amended Form 86 as summarised above.

28.Although counsel submitted that only Grounds (1) to (3) are interconnected, this court is of the view that all 4 Grounds are in fact interconnected. Indeed, if the Board had considered the child-specific risks of the applicant, it would have found that the applicant’s own personal circumstances could have given rise to a risk of persecution.

29.This court notes from the Board’s Decision that the Board had indeed only focused on dealing with the applicant’s risk based on the Mother’s claims.

30.The Board was plainly aware of the applicant’s personal circumstances as a minor of tender age, she was a child of mixed race and was considered as born out of wedlock, as the Mother’s religious marriage in Hong Kong was not recognised and was not registered in country I or Hong Kong.

31.Although the Board had addressed the applicant’s risks arising from the Mother’s situation, the Board did not separately consider the difficulties the applicant might face upon refoulement, such as whether she would face discrimination as a child of mixed race and a child born out of wedlock, and whether she would be ill-treated by any other persons upon refoulement.

32.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.

33.The Board has clearly committed an error of law when it failed to follow the Fabio[1] principles to give adequate and separate consideration to the applicant’s claim and her personal circumstances in the Board’s Decision.

34.This error alone is sufficient enough for the applicant’s intended judicial review to be reasonably arguable.

35.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

36.For reasons aforesaid, leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision and the applicant is directed to issue an originating summons for the intended judicial review on or before 30 September 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 16^th 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: 16/09/2026 Applicant’s ref. no: AL715212/CNT		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: 16/09/2026 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 16362/19/10/11/I1764 Director of Immigration Putative interested party’s ref. no.: QA T/C 580/19 (Formerly RBCZ 10393/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)