HCAL 26/2020
[2025] HKCFI 5752
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 26 OF 2020
BETWEEN |
| | Andry Weliyanto Aksa Julian Toby (a minor)
by Rina Mulyani, his next friend | Applicant |
| | 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:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the applicant be amended to “Andry Weliyanto Aksa Julian Toby (a minor) by Rina Mulyani, his 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 and filed on 3 January 2020, the applicant (a minor), represented by his mother Rina Mulyani (“the Mother”) as his next friend, 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 15 November 2019 (“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/2020/HCAL000026_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal and petition against the decision of the Director of Immigration (“the Director”) dated 10 May 2019 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s said decision, which rejected the applicant’s non-refoulement claim.
Legal representation of the applicant
3. The applicant is a minor and represented by the Mother in the Leave Application.
4. By a letter dated 4 February 2025, this court informed the Mother about the requirement under Order 80, rule 2 of the Rules of the High Court that she must be represented by a solicitor.
5. At the first hearing of the Leave Application on 27 May 2025, the Mother confirmed that she did receive this court’s said letter but she only received it in March or April 2025. She just collected the application form for legal aid from the Legal Aid Department and asked for an adjournment so that she could apply for legal aid for the applicant. Hence, this court adjourned the hearing to enable the Mother to apply for legal aid.
6. The Mother did apply for legal aid but her application was refused on 7 August 2025.
7. At the resumed hearing on 14 October 2025, the Mother confirmed that she would not engage a private lawyer to represent the applicant. She further confirmed that the applicant would rely on the materials already submitted to this court, including her submission annexed to her affirmation dated 30 April 2025, as the grounds for the intended judicial review.
8. 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.
Amendments
9. The applicant’s name should be stated in Form 86 as “Andry Weliyanto Aksa Julian Toby (a minor) by Rina Mulyani, his next friend”. Thus, on this court’s own motion, the applicant’s name is so amended.
10. The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and only the Director should be the putative interested party. 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”.
The applicant’s case
11. 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.
12. In sum, the applicant claimed for non-refoulement protection because he feared being ill-treated by his grandfather if he were to be refouled to Indonesia. His claim was derived from the Mother’s claim that his grandfather would harm or kill the Mother because she married a man of a different race, who was not born a Muslim and having a child with him was a disgrace to the family.
Oral hearings
13. As aforesaid, the first oral hearing of the Leave Application was held on 27 May 2025, but it was adjourned to 14 October 2025 to enable the Mother to apply for legal aid.
14. At the resumed hearing on 14 October 2025, when this court asked the Mother for the applicant’s grounds of the intended judicial review, the Mother said that the applicant relied on the same grounds contained in the written submission enclosed in her additional supporting affirmation dated 30 April 2025. She had nothing further to add, save that she wanted to stay in Hong Kong until her children finished school and the applicant had autism, which cannot be grounds for the intended judicial review at all.
Grounds for judicial review
15. 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).
16. The applicant’s Form 86 and the supporting affirmation dated 3 January 2020 were not made by himself, but by the Mother. The Mother did not advance any specific ground for the applicant’s intended judicial review in Form 86 nor in the supporting affirmation. His mother merely stated in the supporting affirmation that she would like to reject and review the Board’s Decision as they disregarded her son’s dangerous situation. She also stated that the applicant’s case was related to her case in HCAL 654/2018.
17. However, in the additional supporting affirmation dated 30 April 2025, the Mother advanced eight grounds for the intended judicial review, which are summarised as follows:
(1) She did not agree with the Director’s Decision and the Board’s Decision, as she did not think that the applicant’s case had been determined fairly.
(2) Without knowing how the applicant’s case was determined, it was not easy to appeal against the decision.
(3) She was not given proper legal and language assistance and it was procedurally unfair.
(4) The Board unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that it did not satisfy the requirements.
(5) The Board acted in a procedurally unfair manner in dealing with the applicant’s appeal.
(6) The Director’s Decision and the Board’s Decision were unreasonable or irrational in the public law sense or were a result of procedural errors or unfairness.
(7) The Director and the Board failed to meet the greater care and duty owed to a self-represented claimant.
(8) The discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposal of their cases was unacceptable and was determinate to the spirit of Judicial system.
Discussion
18. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali[2018] HKCA 549). This court will only deal with the Leave Application in respect of the Board’s Decision.
19. The Mother’s allegation that there was a lack of legal assistance is unfounded, as a lawyer from the Duty Lawyer Service did assist the Mother in the preparation of the applicant’s Non-refoulement Claim Form. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37). Thus, there is no substance in this allegation.
20. Likewise, it is trite that the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). In any event, the Mother was in fact assisted by a Bahasa Indonesia interpreter at the hearing before the Board on 4 October 2019.
21. The Mother alleged that she did not know how the applicant’s case was determined, and hence it was not easy for her to appeal against the decision. However, it is noted that all the documents filed by the Mother on the applicant’s behalf in relation to the Leave Application were written in English. It indicates clearly that the Mother is either familiar with the English language or she has access to such language assistance if needed. She cannot claim that the applicant has been prejudiced at all.
22. It is utterly untrue that the Board disposed of the applicant’s case quickly and was discriminatory towards him. In assessing the appeal by the applicant, the Board held an oral hearing on 4 October 2019. The Board gave the Board’s Decision on 15 November 2019. It means that the Board took more than a month to consider the applicant’s case, which can hardly be regarded as quick disposal.
23. The Board in the Board’s Decision gave very detailed discussions and analysis of the applicant’s case, which shows that the Board did consider the applicant’s case very carefully and thoroughly. Furthermore, the Mother was present at the hearing and was given the chance to present the applicant’s case to the Board in person with the assistance of an interpreter. The Board carefully examined her evidence and questioned her for details. There is simply nothing to show that the Board was discriminatory towards the applicant.
24. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder[2019] HKCA 20; Re Aziz Nasir[2019] HKCA 578; and Re Kharsu Numan[2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim[2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
25. Thus, all the other general assertions put forward by the applicant, which merely contained “key words” such as the Board’s Decision was wrong, unreasonable and irrational, or that there were procedural errors or unfairness cannot help the applicant at all.
26. This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.
27. 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).
28. 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.
29. The Board which assessed the applicant’s case was the same constituted Board as that for the case of the Mother and the applicant’s brother, Andry Weliyanto Adrian Gavin Owen.
30. The Board referred to its finding in the appeal of the Mother and the applicant’s brother (ie case in HCAL 654/2018). In that case, having regard to the Mother’s evidence and the law, the Board concluded that there was no real risk that the Mother and the applicant’s brother would be ill-treated or harmed by both or either of the applicant’s grandparents, if they returned to live with the applicant’s grandparents in Indonesia. The same conclusion was also true if they returned with the applicant’s father, who was also a non-refoulement claimant, to live with the applicant’s grandparents or elsewhere in Indonesia. Hence, the Board made a decision on 28 July 2017 to refuse their non-refoulement application.
31. At the hearing for the applicant’s case, the Mother told the Board that as she had no contact with her parents or siblings since her own hearing, she had no recent information about the state of her relationship with them. When asked whether her father would still wish to find them and harm them, she said that she was willing to return to Indonesia with her children and their father. The Board considered that there was nothing from the Mother which would cause it to doubt its findings in relation to the claims in HCAL 654/2018, nor any new matter which would support a finding that the applicant would be at real risk of harm if he returned to Indonesia with the Mother.
32. In assessing the viability of internal relocation, the Board considered that as the applicant’s parents had experience of living in Jakarta and the applicant’s father was from Surabaya, they could live with their children in either place if they wished to live somewhere else in the country instead of living with the parents of the Mother.
33. The Board also found from country of origin information (“COI”), namely the US State Department Country Report on Human Rights Practices in Indonesia for 2016, that 2 types of crisis centre were available for abused women. In the relevant paragraphs of that report, a copy of which was provided to the Mother, it was noted that the Indonesian government ran integrated service centres for women and children in all 34 provinces and approximately 242 districts. This showed that the public authorities did not acquiesce in domestic violence, but took steps to prevent it and to protect its victims from harm. In any event, in view of its finding of facts, the Board found that the applicant would face no real risk of torture being inflicted on him if he accompanied the Mother on her return to Indonesia.
34. The finding of facts, including assessment of COI and risks of harm, was solely within the ambit of the Board. The Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM. The Board was entitled to come to its conclusion. The mere fact that the Board did not believe the applicant would face a real risk of proscribed harm cannot be regarded as a discriminatory act towards him. Quite the opposite, it shows that the Board did carefully consider his claims as asserted.
35. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board. The Board’s Decision is not unfair or unreasonable.
36. As aforesaid, at the oral hearing before this court, the Mother on behalf of the applicant was unable to provide further details to show that the Board had committed any errors of law or there was any procedural unfairness or irrationality in the Board’s Decision.
37. Moreover, in the case of HCAL 654/2018, the Mother and the applicant’s brother had appealed to the Court of Appeal against the decision of Deputy High Court Judge Bruno Chan who dismissed their application for leave to apply for judicial review of the Board’s decision against their non-refoulement claim. The Court of Appeal dismissed their appeal. If the applicant is relying on the same reasons and same facts of the Mother’s case in the Leave Application, there is simply no prospects of success.
38. 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.
39. 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
40. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of December 2025
| | ( Irene 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: 2 December 2025
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:
2 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15922/19/5/62/I1690
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 184/19
(Formerly RBCZ 10103/19)
[T2S53]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1