Cristyan Septa Megarani and Others v. Torture Claims Appeal Board Non-refoulement Claims Petition Office

HCAL 1858/2025 and
HCAL 2711/2025

(Consolidated)

[2026] HKCFI 5214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS. 1858 OF 2025 AND 2711 OF 2025

(CONSOLIDATED)

BETWEEN

(Consolidated pursuant to the Order of
Deputy High Court Judge K.W. Lung dated 23 September 2026)

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 documents and oral submissions by counsel for the Applicants in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   Leave for the Applicants to apply for Judicial Review be refused; and

2.   Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 2^nd and the 3^rd Applicants’ application a nullity.

Observations for the Applicant:

THE APPLICATION

1.By an Order of this Court, the above 2 actions are consolidated to be heard together.

2.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant (“the daughter”), born on 16 December 2022. The mother is acting for herself and also as the next friend of the daughter in HCAL 1858 of 2025. She is acting as the next friend of the 3^rd applicant (“the son”), born on 22 August 2024 in HCAL 2711 of 2025.

3.The children’s claims rely on the facts of the mother.

4.In HCAL 1858 of 2025, the mother and the daughter applied for leave to apply for judicial review of the Decision dated 6 March 2024 of the Torture Claims Appeal Board (“the Board’s 1^st Decision”), which dismissed their appeal against the Director’s Notice of Decision dated 5 July 2023 (“the Director’s 1^st Decision”), refusing their non-refoulement claim.

5.In HCAL 2711 of 2025, the mother acted as the next friend of the son to apply for leave for judicial review of the Decision dated 11 November 2025 (“the Board’s 2^nd Decision”), which dismissed the son’s appeal against the Director’s Notice of Decision dated 30 July 2025 (“the Director’s 2^nd Decision”), refusing the son’s non-refoulement claim.

6.The applicants did not ask for a hearing. I shall deal with their respective applications on the papers.

7.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Forms 86 are amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

HCAL 1858 of 2025

The applicants  

8.The applicants are nationals of Indonesia.

9.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the father of the mother, and also the daughter will be discriminated by the society and even by the Indonesian government because the daughter was born out of wedlock and is mixed-race.

10.Details of the facts are set out in the Board’s 1^st Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001858_2025_files/1st_Board's_Decision.pdf

The Director’s 1^st Decision

11.The Director considered the applicants’ claims in relation to the following risks (“the applicable risks”):

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.By way of the Director’s 1^st Decision, the Director assessed the claims of the mother and the daughter. It dismissed their claims on all applicable risks because their claims were unsubstantiated.

13.The mother and the daughter jointly appealed the Director’s 1^st Decision to the Board.  On 25 January 2024, the Board conducted an oral hearing for their appeal. Both the applicants and the Director were legally represented. The mother had given evidence and answered the Board’s questions.

14.Having considered the evidence and the country-of-origin information (“COI”), the Board found that it accepted that the daughter was mixed-race, but it did not accept that the mother will be harmed by her father, or the daughter will be harmed by her grandfather or discriminated by the society because she was born out of wedlock and a mixed race [78]; that COI revealed that there is ample evidence of health support services available for the mother and the children in Indonesia [83]; that the mother admitted at the hearing that her own family would be receptive to the daughter and she had no concerns at all about returning home [84]; and that the applicants would not face any appreciable risk of serious of significant harm if they return to Indonesia [86].

15.For the reasons above, the Board dismissed their joint appeal and confirmed the Director’s 1^st Decision. 

HCAL 2711 of 2025

16.The son was born in Hong Kong. His birth registration signifies the status of his Hong Kong resident as “not established”. The mother raised the same issues of harm to herself and to the son as she had raised in her and her daughter’s claim.

17.Acting by her mother, the son appealed the Director’s 2^nd Decision to the Board. On 21 October 2025, the Board conducted an oral hearing for his appeal. The mother had given oral evidence and answered the Board’s questions. The evidence on the specific issues for the son given by the mother can be summarized below. See the Board’s 2^nd Decision through hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001858_2025_files/2nd_Board's_Decision.pdf

(1)  He may be harmed or killed by the mother’s father because he was born out of wedlock.

(2)  He may be discriminated by the society as he is mixed-raced.

18.Having considered the evidence and COI, the Board made the findings below.

(1)  The mother’s evidence on the facts of her claim and the fact that the applicant is a mixed race were acceptable, but it did not accept that the mother’s father will cause harm or even kill the son if he returns to Indonesia with his mother and sister. [48] & [50]-[52]

(2)  The Board also found that state protection will be available to the applicant and the mother if they return to Indonesia. [48]

(3)  The Board did not accept that the son will be discriminated because he was born out of wedlock and a mixed race, and he will be protected by the law in Indonesia. [56]

(4)  The Board further found that internal relocation is viable as the mother had admitted before the Board in the hearing. [48] & [62]

19.For the reasons above, the Board dismissed the 2^nd applicant’s appeal and confirmed the Director’s 2^nd Decision.

Joint Application for leave to apply for judicial review

20.By Form 86 dated 20 August 2025, the mother and the daughter applied for leave to apply for judicial review of the Board’s 1^st Decision. By another Form 86 dated 8 December 2025, the mother acting for the son applied for leave to apply for judicial review of the Board’s 2^nd Decision. The Board’s 1^st and 2^nd Decisions are collectively called (“the Board’s Decisions”)

21.In support of their applications, the mother stated in her affirmations that she and her children may be harmed or killed by her father and the children may be discriminated by the society because they were born out of wedlock and are mixed race. She did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

22.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

24.I shall first deal with the mother’s application.

25.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

26.There is no reason for this court to interfere with the Board’s 1^st Decision. Its decisions do not have any error in law or unfairness procedurally, and its decisions are not irrational.

27.I dismiss the mother’s application for leave to apply for judicial review of the Board’s 1^st Decision.

28.I shall now come to the 2^nd and the 3^rd applicants’ applications.

29.They rely on their mother’s claim in support of their claims. The mother has failed to establish her claim on the facts. The children therefore have no factual basis in support of their claim. The remaining issue for the Court’s consideration is whether the Board, in the assessment of their cases, had separately considered the child specific issues, following the guidelines in the decisions of the Court of Appeal in Fabio Arlyn Timogan & Others v. Evan Ruth, Esq, Adjudicator of Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2020] HKCV 971.

30.The daughter was legally represented before the Board. The Board had already had separate consideration of the daughter’s case.

31.The mother has not raised any concern of potential non-refoulement grounds relating to the son, but which had not been advanced to the Board or considered by it because of lack of legal representation on his behalf before the Board.

32.I cannot think of any child specific issue which the Board had not considered because of lack of legal representation for the son.

33.Therefore, I consider that the 1^st applicant, the 2^nd applicant and the 3^rd applicant do not have any reasonable prospect of success in their intended judicial reviews of the Board’s Decisions.

34.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial reviews.

DISPOSITION

35.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their respective applications.

36.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd and the 3^rd applicants’ application a nullity.

Dated the 23^rd 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