Case Document

100%

HCAL 1321/2021

[2026] HKCFI 5159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1321 OF 2021

BETWEEN

	Mahmood Anaya Danish (a minor)	Applicant
	by Khosidatun, 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 the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, “Khosidatun” be deleted as the 1^st applicant, the 2^nd applicant be changed to be the sole applicant and her name be amended to “Mahmood Anaya Danish (a minor) by Khosidatun, her next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 20 September 2021 and filed on 21 September 2021, Khosidatun and Mahmood Anaya Danish, 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 20 September 2019 (“the Board’s Decision”).

2.Khosidatun (“the Mother”) is the mother of Mahmood Anaya Danish, a minor born in Hong Kong on 25 April 2018. In Form 86, the Mother named herself as the 1^st applicant and Mahmood Anaya Danish as the 2^nd applicant. However, the Mother is in fact the applicant of a separate leave application together with her two other children in HCAL 2903/2018, which had been dismissed on 8 September 2021. Hence, the Mother should not be an applicant together with Mahmood Anaya Danish in the Leave Application. Moreover, the Board’s Decision was only concerning Mahmood Anaya Danish’s non-refoulement claim and not the Mother’s. Thus, Mahmood Anaya Danish should be the only applicant in the Leave Application.

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

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001321_2021_files/the_Board's_Decision.pdf

4.The Board found that Mahmood Anaya Danish was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed her appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 December 2018 (“the Director’s Decision”) and confirmed the same, which rejected her non-refoulement claim.

Amendments

5.As aforesaid, Mahmood Anaya Danish should be the sole applicant in the Leave Application. Her name should be stated in Form 86 as “Mahmood Anaya Danish (a minor) by Khosidatun, her next friend”.

6.Thus, on this court’s own motion, “Khosidatun” is deleted as the 1^st applicant, “Mahmood Anaya Danish” is changed to be the sole applicant and her name is amended to “Mahmood Anaya Danish (a minor) by Khosidatun, her next friend”.

7.In Form 86, the applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties.

8.In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

9.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.

Late application

10.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.

11.However, the applicant filed Form 86 on 21 September 2021, which was 2 years after the Board’s Decision (made on 20 September 2019). The applicant was hence late for 21 months 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.

12.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.

13.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

14.At the oral hearing before this court on 3 September 2026, the Mother explained the delay by saying that she did not know how to apply for judicial review and she only made the Leave Application for the applicant in 2021 when she was helped by an NGO.

15.However, this could not be true. As aforesaid, the Mother had made another Leave Application for herself and her two other children in 2018 and hence she must have known how to apply for judicial review. The Mother then said that she thought that there was no need to make another application then. When this court raised the query to her that she must have known the procedures from her experience in the previous leave application, the Mother merely replied that she did not know.

16.A delay of 21 months is very substantial, and the Mother’s explanation for the delay was not plausible. More importantly, there is no merit in the Leave Application at all.

17.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

18.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below.

Legal representation of the applicant

19.The applicant is a minor and is represented by the Mother as her next friend in the Leave Application.

20.The Mother applied for legal aid for the applicant but her application was refused by the Director of Legal Aid on 29 July 2026.

21.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.

22.As the applicant was legally represented before the Director 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

23.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.

24.In sum, the applicant’s claim for non-refoulement protection was based on the same fears of the Mother as presented in the Mother’s own non-refoulement claim. The applicant claimed that if refouled to Indonesia, she would be harmed or killed by her maternal grandmother (“the Grandmother”) as the Mother refused to marry an old man arranged by the Grandmother. The Grandmother had threatened to kill the Mother and the Mother’s children.

25.The applicant also feared harm from the elder brother of the Mother (“the Uncle”) who had previously harmed the Mother as the Mother disobeyed him. The Uncle was also furious that the Mother refused to marry the old man, had given birth to children in Hong Kong and had betrayed her religion and shamed the family. The Mother claimed that the Uncle had disowned her, and had threatened to kill her and her children.

26.Initially, the Mother also claimed that the applicant feared discrimination as the applicant was an illegitimate child. However, the Mother confirmed with the Board that the applicant was actually born after her marriage with the applicant’s Pakistani father, which was registered in Hong Kong. Thus, the applicant is not a child born out of wedlock, nor an illegitimate child.

Oral hearing

27.The applicant’s Leave Application was heard 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’s claim arose from family matters, which had all been presented to the Board for consideration.

28.When this court asked the Mother what was wrong with the Board’s Decision, she answered that there was nothing wrong, and she made the Leave Application for the applicant because of the problems in Indonesia.

29.The Mother then confirmed that the applicant was of mixed-race, whose father was a Pakistani non-refoulement claimant and had already returned to Pakistan, and the applicant would not go back to Pakistan.

Grounds for judicial review

30.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).

31.The applicant’s Form 86 and the supporting affirmation dated 20 September 2021 were made by the Mother on behalf of the applicant. The Mother did not advance any specific ground for the applicant’s intended judicial review in Form 86, nor in her supporting affirmation. In the said affirmation, the Mother merely stated that she would like to reject and review the Board’s Decision as they disregarded their dangerous situation.

32.As aforesaid, at the oral hearing before this court, the Mother confirmed that there was nothing wrong with the Board’s Decision. She merely said that the problems still existed in Indonesia. However, this could not amount to any valid ground for the applicant’s intended judicial review.

Discussion

33.First of all, the applicant’s fear of returning to Indonesia due to family matters had been assessed by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review, save when the Board’s findings are erroneous on point of law or irrational.

34.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).

35.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

36.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 15 July 2019. The applicant was represented by the Mother. Hence, the applicant did have an opportunity to present her case to the Board.

37.As can be seen from the Board’s Decision, the Board did give due consideration to all the risks that the applicant might face if she were refouled to Indonesia. The Board had discussed the credibility issues of the applicant’s claims in paragraphs 69 to 72 of the Board’s Decision, and it is not necessary to repeat the same here.

38.In gist, the Board found that the Mother was not a credible witness and aspects of her claims to fear harm were not credible. On that basis the Board did not accept that aspects of the applicant’s claims to fear harm if returned to Indonesia were credible.

39.The Board had laid out its material findings of fact in paragraph 73 of the Board’s Decision. On the issue of nationality, the Board found that the applicant was entitled to be registered as an Indonesian citizen. Based on its assessment of the Mother’s credibility, and on its assessment of the available evidence, the Board did not accept the applicant’s claims that (1) she was at risk of harm if returned to Indonesia from the Grandmother or the Uncle; (2) the Mother was threatened with death by the Grandmother if she did not engage in an arranged marriage in Indonesia; (3) the Grandmother threatened to kill and harm the applicant and other members of the applicant’s family if they returned to Indonesia; (4) the Mother feared harm from the Uncle; (5) the Mother was physically harmed by the Uncle on numerous occasions in Indonesia or that the Mother suffered physical harm from the Uncle in Indonesia; and (6) the applicant feared harm from the Uncle.

40.Together with the Board’s consideration of country of origin information (“COI”) materials, the Board did not accept that the applicant was at risk of harm because of any issues related to the marriage of her parents and the issuing of a birth certificate for her. The Board also did not accept any direct or implied claim that the applicant faced a real risk of serious harm if she returned to Indonesia because she was born in Hong Kong. The information before the Board was that her parents were married in Hong Kong in June 2017. Thus, the applicant was not an illegitimate child.

41.Significantly, this court notes that although the applicant did not raise any claim of fear due to her mixed-race ethnicity, the Board on its own initiative discussed in paragraph 73(g) of the Board’s Decision this aspect of the applicant’s risk as an implied claim. The Board found from fully-referenced COI that the applicant would not face a real risk of harm if she returned to Indonesia because of her mixed-race background.

42.In the Board’s Decision, the Board also referred to its previous findings in the Mother and her two other children’s case on the issue of state protection and internal relocation. The Board’s overall analysis of the COI material was that if the applicant was returned to Indonesia, there would be a reasonable level of state protection available to her on the basis of her claims. The Board’s overall analysis of the COI material in relation to relocation was that notwithstanding the difficulties for the applicant’s family, it would be reasonable overall for the applicant and her family to relocate to other places in Indonesia if she feared harm on the basis of her claims in the Mother’s home area.

43.After due consideration of the applicant’s claims, the totality of the evidence, the available and relevant COI, the Mother’s submissions for the applicant, and the Board’s own assessment of the credibility of the applicant’s claims, the Board did not find that the applicant faced any real risk upon refoulement to Indonesia.

44.Thus, the Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.

45.Although the applicant was unrepresented when her claim was assessed by the Board, the Board did on its own initiative assessed the applicant’s danger including those specific to the applicant, namely that she was a child of mixed-race, and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM. Thus, the applicant was not prejudiced despite the absence of legal representation before the Board.

46.The finding of facts, including the assessment of evidence, COI and risks of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

47.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

48.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. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

49.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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 15295/19/1/168/I1613 Director of Immigration Putative interested party’s ref. no.: QA T/C 4612/18 (Formerly RBCZ 10834/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)