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

CACV 325/2026, [2026] HKCA 1039

On Appeal From [2026] HKCFI 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 325 OF 2026

(ON APPEAL FROM HCAL NO 461 OF 2022)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho (“the Judge”) dated 16 March 2026 by which her application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board (“the Board”) dated 20 April 2022 (“the Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration rejecting the Applicant’s non-refoulement claim.

2.  The Applicant is a national of Indonesia. The basis of her non-refoulement claim was set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in [4] of the Form CALL-1 dated 16 March 2026. In gist, the Applicant claims that if she returns to her home country, she will be harmed or killed by her creditor for failing to repay her debt.

3.  The Board had found that the Applicant was not credible, and that there had not been any loan at all as claimed. The Board had regard to country of origin information as referred to by the Director of Immigration; none was provided by the Applicant.

4.  In [5] to [11] of the Form CALL-1, the Judge gave her reasons for refusing the Leave Application. She noted that on the evidence, the Board did not consider that the Applicant faced any real risk of proscribed harm from the loan shark, were the Applicant to return to Indonesia. The Judge noted that accordingly, the Board could not be faulted for not having gone on to consider the level of state protection which could be offered, or internal relocation options. As to the alleged failure to consider country of origin information, the Board had in fact considered this. As to the alleged failure to take into account the threats to the Applicant and her fear, and the risk of her being subject to torture on refoulement, the Judge pointed out that the Board had, on the facts, rejected the claim that the Applicant faced the risk of proscribed harm on her return.

5.  By a Notice of Appeal filed on 30 March 2026, the Applicant appealed against the Judge’s decision. The Applicant contended that:

“1. Failure to consider the fact I had raised in my claim that my Fear into my country was not solved.

2. Failure to consider my claim under BOR 2 and BOR 3 risk.

3. Failure to consider the COI origin information.”

6.  The arguments in the Applicant’s skeleton submissions lodged on 13 April 2026 can be summarised as follows :-

a.  the assessors’ view was that her claim was not established because her fear was too low but in fact the Applicant’s life is still in danger;

b.  the Board and/or the Director failed to take into account relevant considerations or took into account irrelevant considerations;

c.  the Board did not follow a high standard of fairness, and did not inquire about her fear. The country of origin information clearly showed that no protection to the Applicant would be provided. The Judge improperly confirmed the Board’s Decision;

d.  the Applicant does not agree that she will be safe even if she relocates to the other parts of her country;

e.  the decision maker did not observe the Applicant’s fear well;

f.  the Applicant’s claim is not a private matter;

g.  the Judge applied an incorrect test and relied on credibility findings;

h.  the Board acted outside the scope of the Immigration Ordinance/USM by misinterpreting statutory thresholds or applying an incorrect legal test; and

i.  the Applicant also stated a number of heads of challenge (error of law, breach of natural justice/procedural unfairness, irrationality/Wednesbury unreasonableness, error in fact-finding, failure to consider material evidence, misapplication of burden and standard of proof, failure to consider country information or changed circumstances, proportionality/compatibility with constitutional rights) but she did not pinpoint how these heads of challenge related to, or arose, in her case.

7.  The appeal was scheduled to be heard on 2 June 2026. The Applicant failed to appear at the hearing. We will therefore proceed to deal with the appeal on the papers.

8.  The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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 role of the Court is not to examine the Board’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst at [14(6)]).

9.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

10.  In the present case, the Applicant’s case was wholly rejected by the Board on the facts. The Board’s findings as to the Applicant’s credibility and the truth of her claim were open to the Board based on the evidence it received, and for the reasons it gave. The Judge found no reasonably arguable error of law or procedural unfairness or irrationality in the decision of the Board.

11.  It is incumbent on the Applicant to point out the Judge’s errors with sufficient particulars and specificity. In our view, the matters set out in the Applicant’s Notice of Appeal and skeleton submissions failed to identify any error on the part of the Judge. They fail to engage with the reasons of the Judge in rejecting the Applicant’s application for leave to apply for judicial review. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

12.  For the above reasons, the Applicant’s appeal is devoid of merit. Accordingly, we dismiss the appeal with no order as to costs.