Sukartini and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2587/2024

[2026] HKCFI 5067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2587 of 2024

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 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 Levy:  

1.  The title of the applicants’ Form 86 regarding the 2^nd applicant be amended on the court’s own motion as follows:

A2: “Sukatini Khanza Natalia, suing by her mother and next friend, Sukatini”

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

Observations for the Applicant:

Background

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 23 December 2024, the applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 6 December 2024 (“Board’s Decision”) dismissing the applicants’ appeal against a decision of the Director of Immigration (“Director”) dated 20 May 2024 rejecting the applicants’ non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002587_2024_files/the_Board's_Decision.pdf

2.The 1^st applicant is the mother of the 2^nd applicant, a daughter born in Hong Kong on 16 October 2023. An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971 at [57]. Despite the applicants’ non-compliance with the requirement, this court would treat the non-compliance with the rule as a mere irregularity, and proceed to consider the Leave Application: see Fabio (supra). I will order the amendment to the title of the Form 86 by the description of the 2^nd applicant as:

A2: “Sukatini Khanza Natalia, suing by her mother and next friend, Sukatini”

3.The basis of the applicants’ claims was that, if refouled to Bangladesh, the applicants would be harmed or killed by a loan shark for the loan borrowed by the 1^st applicant’s mother who used the 1^st applicant as the guarantor for the loan. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.The applicants have requested for an oral hearing. On 2 June 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicants would like to withdraw their judicial review application. Enclosed with the said letter was a signed memo in a language believed to be Indonesian as well as in English dated 15 May 2026. The memo was signed by the 1^st applicant for herself as well as on behalf of the 2^nd applicant. In the memo, the 1^st applicant stated that she and the 2^nd applicant would like to withdraw the Leave Application as their issues at home had been resolved and they could return home. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicants’ Form 86 and the supporting affirmation provided no such grounds.  

7.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[4] In the present case, the Board found that the 1^st applicant was not a credible witness. In any event, the Board found that the applicants would not face any risk of harm as the 1^st applicant was not the borrower of the loan. The applicants were never ill-treated in the past. The Board had considered the child-specific risk of the 2^nd applicant and found that there was none. The Board further found that the state protection as well as internal relocation would be reasonably available to both applicants. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicants have not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicants’ intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

9.Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. This court is satisfied that the withdrawal application was made by the 1st applicant for herself as well as on behalf of the 2^nd applicant. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Order

10.The title of the applicants’ Form 86 regarding the 2^nd applicant be amended on the court’s own motion as follows:

A2: “Sukatini Khanza Natalia, suing by her mother and next friend, Sukatini”

11.The applicants’ application for leave to apply for judicial review dismissed.

Dated the 17^th day of September 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

Form CALL-1