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

CACV 385/2026, [2026] HKCA 1107

On Appeal From [2026] HKCFI 1733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 385 OF 2026

(ON APPEAL FROM HCAL NO. 591 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 24 June 2022 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed her appeal against the decision dated 9 July 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 1982.  She last arrived in Hong Kong on 12 May 2016 as a foreign domestic helper.  Her contract was prematurely terminated on 27 October 2016 and was required to leave Hong Kong on or before 10 November 2016.  However, she did not depart and had overstayed since 11 November 2016.  On 12 May 2021, she surrendered to the Immigration Department and lodged her non‑refoulement claim on the same day.  The applicant claimed that she is in fear of being harmed or killed by her father’s creditor “Wiwin” because he had defaulted on a loan where the applicant was named as the guarantor.  The applicant learned from her father that Wiwin had eventually occupied her father’s farmland in 2016, and that Wiwin had threatened to kill the applicant if she failed to repay her father’s 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]

3.  By a Form 86 filed on 8 July 2022, the applicant applied for leave to judicially review the Board’s decision.  She did not provide any ground in support of the application in the Form 86 and supporting affirmation.  An oral hearing was held 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 [5] to [8] of the Form CALL‑1 dated 2 April 2026.  The Judge was of the view that the Board gave adequate reasons for its decision and in the absence of any error of law, procedural unfairness or irrationality, the intended challenge was not reasonably arguable and had no realistic prospect of success.

Appeal to this Court

4.  On 13 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  She did not put forward any grounds of appeal but only stated in her Notice of Appeal that she would like to reject and review the decisions of the Board and the court because they disregarded her dangerous situation.  No other or further particulars were provided.

5.  The applicant had lodged written submissions in which she repeated the background and basis of her claim.  Further, she alleged for the first time that she is in fear of her brother[7] and her family as he would kill her if he discovered that she is in a relationship with her boyfriend who is married and has a wife in Hong Kong.  She also stated that internal relocation is not viable as she has no relatives or resources to start a new life in Indonesia.  She contended that the state would not protect her as she has no resources to bribe the local authorities for assistance.

6.  The applicant did not appear at the scheduled hearing on 8 June 2026. We shall accordingly determine her appeal on the basis of the available documents and materials.

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 this appeal, the applicant asserted in her written submissions that in addition to her fear of her father’s creditor, she also feared being harmed or killed by her brother and her family because of her relationship with a married man in Hong Kong.  This is a new claim which was not raised before the Director or the Board in the initial stages of screening, as she had all along claimed to be in fear of her father’s creditor.  In the application before the Judge, the applicant did not attend the oral hearing and did not put forward any grounds of review and did not mention anything about her fear of her family.  As repeatedly held by this Court, it is not open to the applicant to raise a completely new basis of claim on appeal especially when it is fact-sensitive.  In any event, there is no evidence to support this new claim and we do not accept these arguments to be valid grounds of appeal.

10.  Further, in the present case, the Board rejected the applicant’s claim on credibility grounds as it identified material discrepancies in her evidence and her written claims concerning the alleged loan, the illegal occupation of her father’s farmland by the creditor and the threats from her father’s creditor.  The Board assessed that even if the applicant’s account was true, the risk of serious harm was not real or substantial given that her father’s creditor had never inflicted any physical harm on the applicant or her family.  The Board further assessed on the basis of the COI that she could resort to reasonable state protection in Indonesia and that internal relocation is a viable option.  The Board thus concluded that the applicant had failed to satisfy the requisite threshold entitling her to protection under any of the applicable grounds.  These were findings which were open to the Board on the evidence it received, and for the reasons it gave.  As observed by the Judge, the applicant had failed to show any reasonably arguable public law error in relation to the Board’s decision.

11.  As for the complaint that the applicant could not seek state protection as she has no resources to bribe the authorities, the Board noted that the applicant should have, but failed to report the threats to the police after her father made the complaints to the police and that no one was arrested.  The Board noted that there were avenues for the applicant to lodge her complaints and that effective state protection was available to her, having regard to the relevant COI.  Further, regarding the possibility of relocation, the applicant’s assertion that she has no resources or relatives in Indonesia is merely a bare assertion, and failed to engage with the reasons of the Board in finding that relocation was a viable option for the applicant, a mature adult with twelve years of education and seven years of working experience, in a large and populous country.

12.  Equally, the applicant has not been able 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.  

13.  Accordingly, we dismiss the appeal.

[1]    [2026] HKCFI 1733

[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]    It is unclear if the alleged threat is from the applicant’s “brothers” or “brother” as both terms were referred to in her Notice of Appeal.