Tria Ayu Astina and Others v. Torture Claims Appeal Board

HCAL 369/2023

[2026] HKCFI 5912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 369 OF 2023

BETWEEN

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 applicants in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the 2^nd applicant be amended to “Tria Ayu Astina Hanania Alisha (a minor) by Tria Ayu Astina, her next friend”, the name of the 3^rd applicant be amended to “Tria Ayu Astina Seezhan Wazeem (a minor) by Tria Ayu Astina, his next friend”, and the name of the putative interested party be amended to “Director of Immigration”.

2.  The 1^st, 2^nd and 3^rd applicants’ application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 1 December 2022 be dismissed.

Observations for the applicants:

The Leave Application

1.By way of Form 86 dated and filed on 13 March 2023, the 1^st applicant, on behalf of herself and the 2^nd and 3^rd applicants, 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 1 December 2022 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000369_2023_files/the_Board's_Decision.pdf

2.The 1^st applicant is the mother of both the 2^nd and 3^rd applicants, who were born in Hong Kong on 27 February 2020 and 16 March 2021 respectively.

3.The Board found that the 1^st, 2^nd and 3^rd applicants were unable to make out their claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected their appeals/petitions against the decision of the Director of Immigration (“the Director”) dated 23 August 2021 and confirmed the same, which rejected their claims for non-refoulement protection.

Amendments

4.The 2^nd and 3^rd applicants are both minors and represented by their mother, ie the 1^st applicant, as their next friend. Thus, the name of the 2^nd and 3^rd applicants should be stated in Form 86 as “Tria Ayu Astina Hanania Alisha (a minor) by Tria Ayu Astina, her next friend” and “Tria Ayu Astina Seezhan Wazeem (a minor) by Tria Ayu Astina, his next friend” respectively, and on this court’s own motion their names are amended accordingly.

5.The applicants named the Board as both the putative respondent and the putative interested party in the Form 86, when the Board should only be the putative respondent, and the Director should be the putative interested party.

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

Late application

7.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicants 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.

8.However, the 1^st applicant filed Form 86 on behalf of herself and the 2^nd and 3^rd applicants on 13 March 2023, which was 3 months and 12 days after the Board’s Decision (made on 1 December 2022). The applicants were hence late for 12 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicants to make the Leave Application.

9.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.

10.The applicants did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

11.At the oral hearing before this court on 15 October 2026, the 1^st applicant only said that she could not remember why the application was filed late. She said upon receipt of the Board’s letter, she replied to the letter right away, and that happened when she was admitted to hospital. The 1^st applicant said that she took medicines which caused her to be forgetful, and she was sorry that she could not tell this court the reason for the delay.

12.Although a delay of 12 days is not substantial, the explanations given by the 1^st applicant are clearly not satisfactory. If what she said about replying to the Board’s letter right away upon her receipt of the letter, there was simply no reason for her to file the Leave Application out of time. More importantly, there is no merit in the applicants’ intended judicial review as discussed below.

13.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicants to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

14.However, for the sake of completeness, this court will still examine the merits of the Leave Application in respect of all the applicants.

The applicants’ case

15.It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

16.In sum, the 1^st applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared being harmed by her father on the basis of his expressed disapproval of her in the past. She further claimed that she and the 2^nd and 3^rd applicants would suffer discrimination and bullying by the villagers in her home area on the basis that: (1) she had given birth to the 2^nd and 3^rd applicants out of wedlock (carrying a social stigma); and (2) that the 2^nd and 3^rd applicants are of mixed ethnicity.

17.The 2^nd and 3^rd applicants were both very young when their cases were assessed by the Board, and they were both represented by the 1^st applicant.

18.This court notes that the Board had enquired with the Duty Lawyer Service (“the DLS”) as to whether they would represent the 2^nd and 3^rd applicants before the Board. However, the Board was informed by the DLS on 29 April 2022 that they would not assign any lawyer to represent the 2^nd and 3^rd applicants. Hence, the Board proceeded to hear the 2^nd and 3^rd applicants’ case with the 1^st applicant being their representative at the Board’s hearing.

Legal representation for the 2^nd and 3^rd applicants

19.Since the 2^nd and 3^rd applicants are minors, the 1^st applicant, in her capacity as the 2^nd and 3^rd applicants’ next friend, must act by a solicitor according to Order 80, rule 2 of the Rules of the High Court.

20.The 1^st applicant applied for legal aid for both the 2^nd and 3^rd applicants, but the applications were refused by the Director of Legal Aid on 10 August 2026.

21.At the oral hearing before this court on 15 October 2026, the 1^st applicant confirmed that she would not engage a private lawyer to represent the 2^nd and 3^rd applicants.

22.As the 2^nd and 3^rd applicants were legally represented before the Director, and no new evidence would be adduced in the Leave Application, this court considered that the lack of legal representation for the 2^nd and 3^rd applicants in the Leave Application was a mere irregularity and it would not prejudice them. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.

Oral hearing

23.The applicants requested for an oral hearing of the Leave Application and their case was heard on 15 October 2026.

24.The applicants had stated a few grounds under the heading “GROUNDS FOR REVIEW” in the 1^st applicant’s supporting affirmation dated 10 March 2023, and the 1^st applicant confirmed that all the applicants would rely on what were written there as their grounds for judicial review. When this court asked the 1^st applicant to elaborate on the grounds stated therein, she merely said that everything was written there and she had nothing to add.

25.This court then asked the 1^st applicant if there was anything she would like to say in respect of the cases of the 2^nd and 3^rd applicants, but the 1^st applicant answered in the negative.

Grounds for judicial review

26.The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

27.The applicants did not advance any ground for their intended judicial review in Form 86.

28.In the 1^st applicant’s supporting affirmation dated 10 March 2023, the 1^st applicant mentioned a few matters under the heading “GROUNDS FOR REVIEW”, which are summarised as follows:-

(1)  Failure to consider the fact that she had stated in her claim that she and her two children would be harmed upon refoulement;

(2)  Failure to consider the country of origin condition that the authority of her country would not be able to protect her; and

(3)  Failure to consider the fact that she raised in her claim.

29.The 1^st applicant did not elaborate on any of the above grounds for challenging the Board’s Decision at the oral hearing before this court. As aforesaid, she merely said that everything was written there and she had nothing to add.

Discussion

30.First of all, all the 3 grounds stated in the 1^st applicant’s supporting affirmation were advanced without any particulars.

31.In essence, the 1^st applicant is challenging the Board’s finding of facts in the 1^st and 3^rd grounds as summarised above. However, she did not state which “facts” that she raised had the Board failed to consider. All the 3 applicants’ danger of being harmed and/or discriminated had been assessed but rejected by the Board. If the applicants intend to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision.

32.In the 2^nd ground as summarised above, the 1^st applicant mentioned that the Board had failed to consider the country of origin condition that the authority of her country would not be able to protect her. In other words, she sought to challenge the Board’s finding on state protection. Nevertheless, the 1^st applicant did not specify how the Board erred in its assessment of state protection.

33.Contrary to what the 1^st applicant stated in the 2^nd ground, this court notes that the Board had fully considered the availability of state protection to the applicants both against harm from the 1^st applicant’s father and possible discrimination or harm from the villagers of the 1^st applicant’s local area (see paragraphs 67 to 78 of the Board’s Decision).

34.In fact, in the Board’s assessment of the viability of internal relocation for the applicants, the Board had also considered that there was current legislation in Indonesia which protected the 2^nd and 3^rd applicants from discrimination, despite that the 2^nd and 3^rd applicants’ basis of claim, namely discrimination by the local community, could not be equated with that of wider Indonesian society (see paragraphs 108 to 109 of the Board’s Decision).

35.Thus, this court finds that the Board had given sufficient consideration as to the availability of state protection to the applicants. This court finds no flaw in the Board’s finding in this regard.

36.It is therefore this court’s view that the grounds stated in the 1^st applicant’s supporting affirmation are not valid grounds to challenge the Board’s Decision.

37.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).

38.Thus, it is not for this court to re-assess the applicants’ cases for non-refoulement protection. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any valid grounds being advanced by the applicants.

39.In assessing the applicants’ appeals/petitions, the Board held an oral hearing on 18 August 2022. The 2^nd and 3^rd applicants (attendance excused) were represented by the 1^st applicant, who was present at the hearing. Thus, the applicants did have the chance to present their cases to the Board through the 1^st applicant.

40.The Board had given a detailed discussion of the applicants’ case, and laid out its material findings of fact in relation to the 1^st applicant’s claims and its consideration of the claims of the 2^nd and 3^rd applicants separately in paragraphs 44 to 46 and 57 to 78 of the Board’s Decision respectively.

41.In gist, the Board accepted the basic facts spoken by the 1^st applicant, including that she had problems with her father in around 2009/2010 and that her father might have assaulted her to a minor extent and she left the family home as a result. The Board also accepted that she was subjectively afraid of meeting her father again and being harmed by him, as well as being afraid that the 2^nd and 3^rd applicants might be discriminated against by the villagers in her home area.

42.However, in considering the evidence, there was no or no reliable evidence to show (and the Board did not accept) that: (1) the 1^st applicant’s father would harm or kill the applicants if they were returned to Indonesia now; (2) the applicants faced risk throughout Indonesia; (3) the applicants suffered injuries to the required severity; and (4) the state of Indonesia was unwilling to help the applicants for a Convention reason.

43.With regards to the applicants’ fear of harm from the 1^st applicant’s father, the Board found that given the long period of time that the 1^st applicant had had no contact with her father and the 1^st applicant’s own evidence that according to her sister, her father did not want to have anything to do with her anymore, the chances of the 1^st applicant’s father wishing to even confront her in relation to her past transgressions was slim. The Board was of the view that the 1^st applicant’s fear that her father would seriously harm or kill her and the children was only speculative.

44.In respect of the applicants’ fear of discrimination by the villagers, the Board found that the 1^st applicant’s assertion that the villagers in her home village would discriminate her and her children was also the 1^st applicant’s own speculation.

45.In respect of the 2^nd and 3^rd applicants, the Board found that the 1^st applicant’s assertion that they were born out of wedlock might not be completely true. The 1^st applicant confirmed that she was married to the 2^nd and 3^rd applicants’ father in Hong Kong in 2019 in an Islamic marriage. Although the Board accepted that the 2^nd and 3^rd applicants, being of mixed race, would fall within the “membership of a particular social group” ground, the Board found that there were legislations in place in Indonesia that aimed to protect all citizens from acts of racial and ethnic discrimination. The Board found that there appeared to be no sound reason on which to argue that the 2^nd and 3^rd applicants would be deprived of basic government services based on their ethnicity. If the 2^nd and 3^rd applicants did face discrimination, it was evident that legislation was in place for them to seek assistance from the authorities, if necessary.

46.As aforesaid, the Board had thoroughly discussed the issue of state protection to the applicants upon their return to Indonesia.

47.Furthermore, the Board had explored the viability of internal relocation for the applicants as a matter of caution. The Board had given full reasons in paragraphs 104 to 112 of the Board’s Decision that even if the 1^st applicant was afraid to return to her home area with the 2^nd and 3^rd applicants, there was no reason why they could not relocate to other parts of Indonesia and stay there without undue hardship.

48.Thus, the Board concluded that the applicants were not entitled to non-refoulement protection on any of the applicable grounds under the USM.

49.It is clear that the Board had considered the 2^nd and 3^rd applicants’ cases separately from the 1^st applicant, and also the 2^nd and 3^rd applicants’ specific risk as children of mixed race.

50.However, this court notes that the Board had plainly committed an error of law in its interpretation of BOR 2 Risk[1]. The Board stated that “BOR 2 Risk relates to being deprived of life by the government upon refoulement” and “The Appellants have not shown that there are substantial grounds for believing that, if refouled, there would be a real risk or substantial grounds for believing that they would be subjected to a real risk of prohibited treatment – namely, the government of Indonesia would deprive them of life” in its assessment of the applicants’ BOR 2 Risk (see paragraph 83 and 114 of the Board’s Decision respectively).

51.As held by the Court of Appeal in Kulwinder Kaur v Director of Immigration and another [2022] HKCA 48, “The authorities establish that the right to life is also violated by extra-judicial killings by State agents or by non-State actors, where the State fails to take steps to avoid a threat to life emanating from non-State actors or private persons.”  Thus, violation of right to life is not confined to the deprivation of life by the government, as conceived by the Board.

52.However, as held in Re Kulwinder Kaur, supra, the issues under BOR 2 Risk are not separable from those under BOR 3 Risk[2]. Upon determining that there is no BOR 3 Risk, there is no arguable ground for any BOR 2 Risk (see also AA v Sweden (2017) 64 EHRR 20 and RM v Gerard Paul Muttrie Esq, HCAL 166/2015, 3 March 2016).

53.As the Board had found that there were no substantial grounds for believing that the applicants would face a genuine risk of being subjected to ill-treatment under BOR 3, even if leave was granted to the applicants in the Leave Application for reason that the Board had erred in law in its interpretation of BOR 2 Risk, there is simply no reasonable prospect of success for their claim for non-refoulement protection in this regard.

54.It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose (see AW v Director of Immigration and William Lam, CACV 63 of 2015). Thus, even assuming that the Board had committed the aforesaid error and the applicants’ cases were remitted to the Board for re-consideration, the outcome for their non-refoulement claims would still be the same. This court is therefore not prepared to exercise its discretion to grant any remedy to the applicants.

55.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that there is no realistic prospect of success for all three applicants in the Leave Application and hence leave must be refused.

Conclusion

56.For reasons aforesaid, the Leave Application in respect of all the applicants is dismissed for being made out of time and also for devoid of merits.

Dated the 21^st 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