Ningsih Ani Setia and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2356/2025

[2026] HKCFI 5530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2356 of 2025

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 2^nd applicant be amended on the court’s own motion as follows:

Ningsih Kanita Adzila, suing by her mother and next friend, Ningsih Ani Setia

2.  The Form 86 be amended on the court’s own motion.

3.  The 1^st and 2^nd 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 21 October 2025, 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 9 September 2025 (“Board’s Decision”) dismissing the applicants’ appeal against a decision of the Director of Immigration (“Director”) dated 17 June 2025 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/2025/HCAL002356_2025_files/the_Board's_Decision.pdf

2.The 1^st applicant is the mother of the 2^nd applicant, a minor daughter born in Hong Kong on 10 September 2024. 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 971at [57]. Despite the 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: “Ningsih-Kanita-Adzila, suing by her mother and next friend, Ani‑Seta‑Ningsih”

3.In the Form 86, the applicants named the “Petition Terms Security Bureau as the proposed respondent and the Board as the interested party. As the Board should have been the proper putative respondent and the Director the interested party, Form 86 shall be accordingly amended on the court’s own motion.

4.The basis of the applicants’ claim was that, if refouled to Indonesia, they would be harmed or killed by the 1^st applicant’s (i) father due to a property dispute; and (ii) mother and step-father as the 1^st applicant gave birth to the 2^nd applicant in Hong Kong out of wedlock. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.On 3 August 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 with an English translation dated 17 July 2026. In the memo, the names of both of the 1^st and 2^nd applicants were inserted. However, it is not clear from the signature whether the 1^st applicant was also signing on behalf of the 2^nd applicant. Out of abundance of caution, this court scheduled a hearing on 24 September 2026 to clarify the withdrawal application.

6.The 1^st applicant attended the scheduled hearing together with the 2^nd applicant. Through the Indonesia interpreter arranged by the court, the 1^st applicant confirmed that she was making the withdrawal application for herself as well as on behalf of the 2^nd applicant. She informed the court that it is now safe for both of them to go home as the father of the 2^nd applicant would take up the responsibility for the well-being of the 2^nd applicant. She further confirmed that she was making the withdrawal application voluntarily and understood the consequences of the withdrawal.

Discussion

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

8.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.  

9.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 considered the various risks the 1^st and 2^nd applicants separately and found that each of them would not be subjected to any risks of harm if refouled as the past ill-treatment did not meet the requisite level of severity. The Board further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

10.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 provided any grounds in support of the Leave Application. 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

11.Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. 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

12.The Form 86 shall be amended in accordance with [2] and [3] above on the court’s own motion.

13.The 1^st and 2^nd applicants’ application for leave to apply for judicial review be dismissed.

Dated the 5^th day of October 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