RE SITI MUJAYANAH

CACV 173/2025, [2026] HKCA 626

On Appeal From [2025] HKCFI 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 173 OF 2025

(ON APPEAL FROM HCAL NO. 2578 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung dated 25 March 2025 ([2025] HKCFI 864)  (‘the Leave Decision’)  refusing her application for leave to apply for judicial review (‘the Leave Application’)  against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (‘the Board’)  dated 2 July 2019 (‘the Board’s Decision’), whereby the Board dismissed her appeal against the decision of the Director of Immigration (‘the Director’)  dated 28 September 2018, refusing her non-refoulement claim.

2.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the Court[1].  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the Court.

3.  The applicant’s background, the basis of her claim and arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal are all set out in the Board’s Decision: see [4]-[5], [8]-[9] of the Leave Decision[2]. 

4.  The applicant last entered Hong Kong in June 2014 as a domestic worker.  She eventually overstayed since August 2015.  She made a non-refoulement claim in December 2015.  The basis of her claim is that if she returned to Indonesia, she would be harmed or killed by a loan shark named Doni because she was unable to repay a loan incurred by her parents[3].

5.  The Judge also sets out the grounds advanced by the applicant in support of the Leave Application and his reasons for refusing the Leave Application: see [10]-[17] of the Leave Decision.  We will not repeat the details herein.

6.  By the Notice of Appeal filed on 3 April 2025, the applicant stated the following only :

‘ I would like to reject and review the decision made by the court. They disregard my dangerous situation.’

7.  In her written submission, the applicant stated the following in summary :

1)  She is worried that if she returns with her son she will be killed by loan shark;

2)  There is genuine life threat as the loan shark is looking for her;

3)  People know each other well in Indonesia and loan shark can track down the applicant if she returns; and

4)  The applicant has a daughter who is 1.5 years old.  If refouled, it would put the daughter at risk as she is likely to suffer from discrimination and suffer risk of children trafficking.

8.  None of these bare assertions in the applicant’s documents relate to any complaint against the Judge.

I.  Discussion

9.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

10.  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

11.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

12.  However, nowhere in her Notice of Appeal nor written submission did the applicant identify any error committed by the Judge with specific particulars.  Her assertions are all general, bare and vague allegations unsupported by specific particulars or evidence.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The Court will not usurp the role of the Board.  Assessment of evidence, country of origin information materials, 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.  No such error was demonstrated by the applicant.  Clearly, her assertions do not constitute viable grounds of appeal and lack substance.  We see no basis to interfere with the Leave Decision.

13.  Further, within the applicant’s written submissions, she mentions that she has a son and a daughter who would be at risk if refouled.  None of this was mentioned in the Board’s Decision.  There is no basis for this Court to consider this new allegation.  Nor has there been any attempt to seek leave to adduce new evidence: Re Trinh Thuy Huyen [2024] HKCA 1090 at [14]-[16].  See also Director’s Decision at section 6.2, Board’s Decision section 42, both indicating the applicant is ‘single’.

14.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.