Case Document

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HCAL 389/2026

[2026] HKCFI 5280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 389 OF 2026

BETWEEN

	Rubel Raif Althaf Hasan (a minor)	Applicant
	by Wiwin-Winarsih, 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 the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, “Wiwin-Winarsih” be deleted as the 1^st applicant, the 2^nd applicant be changed to be the sole applicant and his name be amended to “Rubel Raif Althaf Hasan (a minor) by Wiwin-Winarsih, his next friend”, and the name of the putative interested party be amended to “Director of Immigration”.

2.  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 15 October 2025 be extended to 12 February 2026.

3.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 15 October 2025.

4.  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 applicant:

The Leave Application

1.By way of Form 86 dated and filed on 12 February 2026, Wiwin-Winarsih and Rubel Raif Althaf Hasan 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 15 October 2025 (“the Board’s Decision”).

2.Wiwin-Winarsih (“the Mother”) is the mother of Rubel Raif Althaf Hasan, who is a minor. In Form 86, the Mother named both herself and Rubel Raif Althaf Hasan as the applicants. The Mother, however, filed her own application for leave to apply for judicial review on 20 November 2024 in HCAL 2200/2024, and hence she should not be an applicant in the Leave Application.

3.The Mother also confirmed at the hearing before this court on 3 September 2026 that the Leave Application concerns only her son Rubel Raif Althaf Hasan but not herself.

4.Moreover, the Board’s Decision concerns only Rubel Raif Althaf Hasan’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 22 May 2025 (“the Director’s Decision”). Thus, Rubel Raif Althaf Hasan should be the sole applicant in the Leave Application.

5.The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000389_2026_files/the_Board's_Decision.pdf

6.The Board found that Rubel Raif Althaf Hasan’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected Rubel Raif Althaf Hasan’s claim for non-refoulement protection.

Amendments

7.As aforesaid, Rubel Raif Althaf Hasan should be the sole applicant in the Leave Application. His name should be stated in Form 86 as “Rubel Raif Althaf Hasan (a minor) by Wiwin-Winarsih, his next friend”.

8.Thus, on this court’s own motion, “Wiwin-Winarsih” is deleted as the 1^st applicant, the 2^nd applicant is changed to be the sole applicant and his name is amended to “Rubel Raif Althaf Hasan (a minor) by Wiwin-Winarsih, his next friend”.

9.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, when the Board should only be named as the putative respondent, and the Director should be named as the putative interested party.

10.Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

Late application

11.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.

12.However, the applicant filed Form 86 on 12 February 2026, which was 3 months and 28 days after the Board’s Decision (made on 15 October 2025). The applicant was hence late for 28 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.

13.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.

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

15.At the oral hearing before this court on 3 September 2026, the Mother explained the delay by saying that she only received the Board’s Decision in February 2026. However, she confirmed that the Board’s Decision was received by post. The Mother’s explanation as to why she did not receive the Board’s Decision in October 2025, when it was made and posted to her address, was that the post was lost in October 2025.

16.The Mother’s explanation for the delay is not satisfactory. The fact that she received the Board’s Decision by post means that the address used for sending the Board’s Decision was correct, and there is simply no reason why she did not receive the Board’s Decision in October 2025. 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 delay of less than one month. Extension of time is therefore granted for the applicant to file the Leave Application on 12 February 2026.

Legal representation of the applicant

17.The applicant is a minor born on 6 May 2024 in Hong Kong out of wedlock to a Bangladeshi father and is represented by the Mother in the Leave Application.

18.The Mother applied for legal aid for the applicant but her application was refused by the Director of Legal Aid on 28 July 2026.

19.At the hearing before this court on 3 September 2026, the Mother confirmed that she would not engage a private lawyer to represent the applicant.

20.As the applicant was legally represented before the Director and the Board, and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation in the Leave Application was a mere irregularity and it would not prejudice the applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.

The applicant’s case

21.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.

22.In sum, the applicant’s claim for non-refoulement protection was based on the Mother’s risk upon return to Indonesia. The applicant claimed that he would be harmed and killed by the Mother’s creditor JAJO due to the Mother’s inability to continue to repay a loan. The applicant also claimed that he would be killed by his maternal grandfather (“the Grandfather”) because he was born out of wedlock.

23.As to the child-specific risks faced by the applicant, the Mother claimed that she feared JAJO might hold hostage, kidnap and subject the applicant to child trafficking or other forms of exploitation, or even kill the applicant as a means to demand loan repayment. The Mother also firmly believed that the Grandfather would carry out his threats against and even kill the applicant and herself.

24.Since the Mother was still legally married to her husband ASLANI in Indonesia, her giving birth to the applicant was out of wedlock, and the applicant himself would be a big insult to ASLANI. The Mother believed that ASLANI would be very furious and would kill both the applicant and herself if they returned to Indonesia.

25.Further, the Mother was also worried about obtaining documentation, such as a birth certificate or household registration for the applicant, without which it could severely limit the applicant’s access to education, healthcare, and other social welfare services. The Mother also feared that the applicant would face discrimination in Indonesia due to religious factor. Since the applicant was born out of wedlock, it was likely that Indonesian society would not accept him, and he might face bullying, harassment, or even hate crimes at school or in other social settings. It was also possible that the applicant would be discriminated because he was of mixed race. Therefore, the health and growth of the applicant would be adversely affected under such circumstances.

26.The applicant also produced several pieces of medical records relating to the treatments he received in Hong Kong for consideration by the Board.

Oral hearing

27.The Mother’s own application for leave to apply for judicial review (HCAL 2200/2024) was heard together with the Leave Application on 3 September 2026. When this court asked the Mother for the applicant’s grounds of the intended judicial review, the Mother said that the applicant was born out of wedlock in Hong Kong with a Bangladeshi father who was also a non-refoulement claimant. The Mother claimed that the applicant would face dangers and racism if he were refouled to Indonesia due to his mixed race ethnicity.

28.The Mother also said that the applicant would not go back to Bangladesh with his father, and she was not sure if the applicant’s father could take the applicant with him.

Grounds for judicial review

29.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).

30.The Mother and the applicant did not advance any grounds for the intended judicial review in Form 86, nor in the Mother’s supporting affirmation dated 12 February 2026.

31.As aforementioned, at the oral hearing before this court, the Mother claimed that the applicant who was born out of wedlock would face dangers and racism if he were refouled to Indonesia due to his mixed race ethnicity.

Discussion

32.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

33.Thus, although this court will not re-assess the applicant’s non-refoulement claim, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

34.From what the Mother said at the oral hearing, it seems that she was challenging the Board’s assessment of the applicant’s risk mainly due to his mixed race ethnicity.

35.As can be seen from the Board’s Decision, the Board was fully aware of the Mother’s worries and claims which were specific to the applicant including that he was a child of mixed race (see paragraph 14(xvi) of the Board’s Decision).

36.Although the Board had evaluated the applicant’s risk against all his enemies arising from the Mother’s case, including the threat from the Mother’s husband ASLANI, the Mother’s creditor JAJO, and the threat from the Grandfather, it seems to this court that the Board did not sufficiently deal with the applicant’s child-specific risks, especially his risk as a mixed race child.

37.This court observed that in paragraph 43 of the Board’s Decision, the Board had assessed the applicant’s child-specific risks as raised by the Mother, namely that the Mother also worried about obtaining documentation, such as a birth certificate or household registration for the applicant, without which could severely limit the applicant’s access to education, healthcare, and other social welfare services. The Mother also feared that the applicant would face discrimination in Indonesia due to religious factor. Since the applicant was born out of wedlock, it was likely that Indonesian society would not accept him, and he might face bullying, harassment, or even hate crimes at school or in other social settings. It was also possible that the applicant would be discriminated because he was of mixed race. Therefore, the health and growth of the applicant would be adversely affected under such circumstances.

38.However, the Board’s assessment on the above fears was limited to the second half of the same paragraph, which were reproduced as follows:-

“The available evidence did not show that the Appellant would be subjected to discrimination, bullying, or, still less, persecution upon returning to the Indonesian community. In fact, it is the Appellant’s case that he has not been present in Indonesia since birth. Also, discrimination was not a basis for seeking non-refoulement protection. The assessment was that the Appellant’s alleged fear of being discriminated did not constitute persecution.”

39.Although the Board had gone through country of origin information concerning Indonesia in paragraph 53 of the Board’s Decision, its discussion in the said paragraph only covered the problem of corruption and incompetence in government authorities, the Indonesian government’s efforts in curbing corruption, the applicant’s eligibility for Indonesian citizenship, and the provision of assistance to women and children in need by various organizations. The Board did not consider the difficulties and/or discrimination the applicant might face upon refoulement as a child of mixed race ethnicity at all.

40.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.

41.It is clear from the authorities cited above that discrimination against a child of mixed race could be a cause for non-refoulement protection. It was wrong for the Board to state that “discrimination was not a basis for seeking non-refoulement protection”. The Board should have considered whether the discrimination faced by the applicant due to his mixed race ethnicity, if any, was severe enough to warrant international protection.

42.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.

43.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. The Board could have 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

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

45.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: Nil		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 26404 Director of Immigration Putative interested party’s ref. no.: QA T/C 2513/24 (formerly RBCZ 5002171/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)