WIJI LESTARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 380/2026, [2026] HKCA 1106

On Appeal From [2026] HKCFI 1736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2026

(ON APPEAL FROM HCAL NO. 594 OF 2022)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Calvin Cheuk (“the Judge”) given on 2 April 2026[1] refusing her application for leave to apply for judicial review against the decision dated 8 June 2022 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed her appeal against the decision dated 9 September 2021 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk[4] and BOR 2 risk[5] grounds.

Background

2.  The applicant is a national of Indonesia born in 1974.  She last arrived in Hong Kong on 14 August 2019 as a foreign domestic helper.  On 16 March 2020, her contract was prematurely terminated.  She had overstayed since 31 March 2020 and subsequently surrendered to the Immigration Department on 19 November 2020.  On 11 December 2020, she lodged her non-refoulement claim on the basis that if she returned to Indonesia, she would be harmed or killed by a moneylender named Yani and Yani’s husband, and also by her own husband.  She claimed to have borrowed 100 million Indonesian Rupiah (approximately HK$54,000) from Yani in May 2019 to start a business selling dry goods.  The business failed within two months and she defaulted on the loan.  She claimed to be threatened by Yani and her husband after she came to Hong Kong.  She alleged that she was also threatened by her own husband because the title deeds to the matrimonial home which belonged to her parents-in-law had been given as collateral for the loan.  The details of the applicant’s background, the basis of her claim, and the Board’s reasons for rejecting her appeal have been set out in the Board’s decision[6]. We will not repeat them.

3.  By a Form 86 filed on 11 July 2022, the applicant applied for leave to judicially review the Board’s decision.  In the Form and supporting affirmation, the applicant did not provide any ground in support of the application but only stated that she did not agree with the Board’s decision.  An oral hearing was held before the Judge on 6 February 2026 but the applicant did not appear.  Having considered the application on the papers, the Judge dismissed the application for reasons set out in [4] to [7] of the Form CALL-1 dated 2 April 2026.  In gist, the Judge was of the view that the Board gave detailed and adequate reasons for its decision and no error of law, procedural unfairness or irrationality can be identified.  The intended challenge was not reasonably arguable and had no realistic prospect of success.

Appeal to this Court

4.  On 10 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  She stated that she does not agree with the Judge, and that the Judge failed to find error in the Board’s decision.  She also asked for a chance to show the error of the Board.  No other or further particulars were provided.

5.  The applicant had lodged written submissions in which she stated (inter alia) that (1) the Board failed to follow a high standard of fairness in providing her with the opportunity to present her claim and failed to consider her evidence and submissions; (2) the Board failed to consider the COI on the lack of state protection or to give weight to the corroborative reports; (3) internal relocation was not feasible despite the vast size and population of her country; (4) the Board’s decision was irrational and its conclusions were unsupported by the evidence; (5) the Board ignored credible documentary or witness evidence, mischaracterised her testimony and relied on irrelevant facts; (6) the Board misdirected itself on the threshold test in considering the risk grounds and misapplied the burden and standard of proof; (7) the Judge mistreated the Board’s credibility findings as conclusive when the risk assessment should be holistic; (8) the decision was not compatible with her constitutional rights.

6.  At the hearing, the applicant indicated that she had nothing to add to her written submissions.

Discussion

7.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

8.  Further, it is well-established that assessments of evidence, country of origin information (COI), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.  In the present case, the applicant did not advance any ground of judicial review before the Judge.  The complaints made against the Board as stated in the Notice of Appeal and in her written submissions are therefore new arguments.  As this Court has repeatedly stated, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]. 

10.  Further, the numerous grounds advanced by the applicant and her submissions in this appeal were general assertions unsupported by particulars.  They did not engage with the reasons of the Board in rejecting her evidence and claims, and did not relate to the facts of her claim.  They did not show any reasonably arguable legal error, procedural unfairness or irrationality in the Board’s decision, as observed by the Judge.  This in itself is sufficient to dispose of the appeal.  Nevertheless, we will address some of the points raised by the applicant.

11.  The applicant’s complaint that she was not given the opportunity to present her claim is unfounded.  She attended the hearing before the Board and was invited to clarify aspects of her claim, to which the Board found that her evidence on the loan was unreliable and incredible.  The applicant admitted before the Board that she did not own the matrimonial home and could not have used the title deeds as collateral for the loan, which have seriously undermined the veracity of her claim.  The Board also found her evidence unconvincing as it was implausible for the applicant’s husband to team up with the moneylender Yani to harm her, since Yani already held the title documents to their matrimonial home.  These are findings of fact that the Board was entitled to make after considering the applicant’s evidence afresh.  This complaint is groundless.

12.  Further, the applicant was not able to identify the evidence or the COI or reports which she claimed the Board had failed to consider, or how such failure would have affected the Board’s assessment.  The complaint that the Board ignored credible witness evidence does not relate to her claim.  She alleged that the Board misdirected itself on the threshold test in considering the risk grounds and the standard and burden of proof, but did not explain any further.  We note that the Board had correctly set out the legal principles, the requisite thresholds under each of the applicable grounds, and the burden and standard of proof to be met by the applicant in claiming non-refoulement protection.[7] There is no merit in this complaint.

13.  On the issue of state protection, the Board considered a range of COI and acknowledged that while corruption exists in the Indonesia police force, reasonable state protection is still available as there are crisis centres, women’s desks in police stations and NGOs that could offer help and assistance.  Therefore, we do not agree that it is reasonably arguable that the Board failed to consider the lack of state protection on the basis of the COI.

14.  On the issue of internal relocation, the Board assessed that internal relocation is a viable option and that it would not be unduly harsh or unsafe for her to relocate internally given her work experience and the presence of organisations to offer her assistance.  We do not agree that it is reasonably arguable that the Board wrongly assessed the feasibility of internal relocation. 

15.  The applicant argued that the Judge mistreated the Board’s credibility findings as conclusive.  We do not agree.  In the first place, the applicant did not provide any ground to support her application for leave to apply for judicial review.  She simply stated in her Form 86 and supporting affirmation that she did not agree with the Board’s decision, and had failed to attend the hearing before the Judge.  Secondly, the Judge did not treat the Board’s credibility findings as conclusive.  On the contrary, the Judge had regard to the comprehensive reasons given by the Board in determining that the applicant had failed to satisfy the requisite threshold entitling her to protection under any of the applicable grounds.  The Judge ultimately dismissed her application as he found no errors of law, procedural unfairness or irrationality in the Board’s decision. 

16.  The applicant failed to demonstrate with particulars any error in the reasoning of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for his holding that the intended judicial review had no prospect of success.  There is no proper basis for us to disturb the Judge’s decision.  

17.  Accordingly, we dismiss the appeal.

[1]    [2026] HKCFI 1736

[2]    This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]    This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]    This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]    This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7]    [52] to [64], [71] and [83] of the Board’s decision