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

CACV 521/2026, [2026] HKCA 1229

On Appeal From [2026] HKCFI 2801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 521 OF 2026

(ON APPEAL FROM HCAL NO 779 OF 2023)

________________________

________________________

________________________

JUDGMENT

________________________

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

1.  There are before the Court:

(1)  the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 18 May 2026 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 16 May 2023 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 July 2022; and

(2)  the Applicant’s application by a summons filed on 22 June 2026 for leave to adduce the materials exhibited to her supporting affirmation of the same date (“the Affirmation”) and particularised in §7 below as new evidence in support of the appeal (“the New Evidence Application”).

BRIEF BACKGROUND

2.  The Applicant alleges that, if refouled to Indonesia, she will be harmed or killed by her husband (Agus Suwitnyo) and a moneylender (“the Moneylender”) due to her husband’s outstanding debt which she has refused to repay on his behalf[1]. The Applicant’s background, the basis of her claim, the findings of the Board and its reasons for dismissing her appeal against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in the Judge’s decision (see §§2-8 of the CALL-1 Form). We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§12-17 of the CALL-1 Form.  In gist, the Judge was satisfied that the Board had considered all relevant issues and adequately covered all concerns of the Applicant in assessing the Applicant’s claim[2]. The Judge also considered that there was no error of law, Wednesbury unreasonableness or irrationality in the Board’s Decision, nor any procedural unfairness on the part of the Board in reaching its decision.  

THIS APPEAL

4.  In her Notice of Appeal filed on 22 May 2026, the Applicant states that she would like to “reject and review” the decisions made by the Board and the court, and complains that they have disregarded her “dangerous situation”. 

5.  In her written submissions lodged on 10 June 2026, the Applicant elaborates her general ground(s) of appeal as follows:

(1)  the Judge and the Board erred in failing to properly consider her evidence and finding her claim to be not credible;

(2)  the Judge and the Board erred in characterising the Applicant’s loan dispute with the Moneylender as private in nature without any state involvement[3], and concluding that she will not face any real risk of harm or ill-treatment upon refoulement.

6.  The Applicant also says in her written submissions that she intends to adduce fresh documentary evidence which could not be obtained due to “objective difficulties” beyond her control.  She contends that the documentary evidence to be adduced “directly corroborates the core of her claim and completely rebuts the [Board’s] adverse credibility findings”.

NEW EVIDENCE APPLICATION

7.  On 22 June 2026, the Applicant issued a summons seeking leave to adduce 5 pages of documents produced as exhibit “WN-1” to her Affirmation in support of the present appeal:

(1)  the 1^st and 2^nd pages consist of photographs of two cheques in the total sum of 205 million Indonesia Rupiah, one issued in 2020 and the other issued in 2021, which appear to show the Applicant’s husband was the payee of the two cheques;

(2)  the 3^rd and 4^th pages each contain a photograph of a one-page note or letter appearing to be written in the Indonesian language (without any accompanying English translation), one bearing the date of 15 May 2025 and the other being undated; and

(3)  on the 5^th and last page are three photographs: the first one showing an individual who appears to be restrained by a group of men, the second showing an older woman sitting on a chair, and the third one appearing to depict a man’s funeral.

8.  On 23 June 2026, the Court directed that the present appeal and the New Evidence Application were to be dealt with together at the hearing of 9 July 2026.

9.  At the hearing of the appeal, the Applicant, apart from explaining the relevance of the proposed new evidence (see below) and how she came to obtain those documents, said that she was suffering from some medical conditions and needed to attend hospital(s) to receive treatment for her conditions.

DISCUSSION

10.  We first deal with the New Evidence Application.

11.  In respect of the proposed new evidence, the Applicant explained at the hearing of the appeal that:

(1)  The two cheques mentioned at §7(1) above relate to the loan that her husband obtained from the Moneylender.

(2)  The letters mentioned at §7(2) above, one from the Moneylender and the other from her sister, show that the outstanding amount of her husband’s debt has now increased to some 2,720 million Indonesia Rupiah (in other words, by more than 10 times).

(3)  The top photograph mentioned at §7(3) above shows that her husband is not a good person, the second photograph of the older woman is her mother, while the third photograph show that her father has passed away.

12.  The Applicant said that she received the above documents from her sister after the hearing before the Judge upon her request made to the sister to look for material evidence to support her claim.

13.  To justify the admission of the proposed new evidence on appeal, the Applicant has to satisfy the three conditions in Ladd v Marshall [1954] 1 WLR 1489 (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(3)).  These three conditions are: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use in the court below, (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, and (3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

14.  We do not consider the first Ladd v Marshall condition is satisfied in the present case.  In her Affirmation, the Applicant says that the proposed new evidence was only “compiled, verified, and received” after the Board’s Decision.  The Applicant has failed, however, to explain why she did not ask her sister to look for the above mentioned documents prior to the hearing before the Judge.

15.  We also do not consider the second Ladd v Marshall condition is satisfied in the present case.  In her Affirmation, the Applicant says that the documents that she wishes to rely upon show that her problem with the Moneylender was genuine, and evidence the real and personal danger that she will face from the Moneylender upon refoulement. However, we do not see that the proposed new evidence would have any material impact on the outcome of the appeal in the present case.  The Board came to the conclusion that the Applicant was not telling the truth, and considered her case to be both vague and unbelievable.  Nevertheless, the Board went on to consider the Applicant’s claim on the assumption that the threats that she had allegedly received from the Moneylender were true, and she would be subject to some real risk of harm from the Moneylender, but found from the available country of origin information that state protection would be available to her in Indonesia, and there were viable internal relocation options for her (see §§40-43 and 59 of the Board’s Decision).  Even if we grant the Applicant leave to adduce the proposed new evidence on appeal, we do not see any valid basis to disturb the Board’s findings on the availability of state protection and viability of internal relocation.  

16.  Having reached the conclusion that the first and second Ladd v Marshall conditions are not satisfied, it is not necessary to consider the third Ladd v Marshall condition.  Finally, we do not consider that there is any, or any sufficient, exceptional circumstance to justify exercising our residual discretion to admit the proposed new evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions. In all, we do not consider the Applicant should be permitted to rely on the proposed new evidence for her appeal.

17.  For the above reasons, the Applicant’s summons dated 22 June 2026 is dismissed.

18.  We now turn to the substantive appeal of the Applicant.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

19.  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 are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

20.  The matters raised in the Applicant’s Notice of Appeal and written submissions are general assertions without particulars, and are mostly directed at the Board’s Decision.  They do not constitute valid grounds of appeal against the Judge’s decision.

21.  In any event, her complaints raised in the written submissions have no merits.  Insofar as they relate to the Board’s assessment of the evidence and risk of harm, as earlier mentioned, they are matters primarily within the province of the Board.

22.  Further, in respect of her first complaint mentioned at §5(1) above, it was part of the Applicant’s claim before the Board that she did not know about the Moneylender or have any knowledge of the background of the Moneylender (see §23.10 of the Board’s Decision).  She was requested by the Adjudicator to provide further details about the Moneylender at the hearing before the Board.  She did not do so, nor did she attempt to find out more information about the Moneylender (see §31(e) and (f) of the Board’s Decision).  It was open to the Board to conclude that the Applicant’s claim was not credible and her evidence was not reliable, in view of various suspicious allegations and inconsistencies in her testimony at the hearing before the Board as well as the contradictions between her oral evidence and written records produced (see §§31-34 of the Board’s Decision).

23.  Her other complaint mentioned at §5(2) above can also be disposed of briefly.  There is a lack of credible evidence in the present case to show that there was any state involvement in the dispute between the Applicant and the Moneylender, or that state protection would not be available to the Applicant upon refoulement.  We do not see any valid basis to intervene in the Board’s finding that the Applicant would be not subject to any real risk of harm in Indonesia because of her problem with the Moneylender.

24.  In all, the Applicant has failed to raise any viable ground of appeal against the Order.

25.  The Applicant’s appeal has no merit, and is dismissed.

[1]  See §§22 and 23.8-23.9 of the Board’s Decision.

[2]  See §12 of the CALL-1 Form.

[3]  See §31(g) of the Board’s Decision.