Case Details
NANIK SULASTRI KUWAT AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
[2026] HKCA 1511 · CACV 1133/2025
Court of Appeal
CACV 1133/2025, [2026] HKCA 1511
On Appeal From [2025] HKCFI 4993
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 1133 OF 2025
(ON APPEAL FROM HCAL NO 1454 OF 2025)
__________________________
BETWEEN
| |Nanik Sulastri Kuwat |1st Applicant |
| |Shaikh Aisyah Rose |2nd Applicant |
| |and | |
| |TORTURE CLAIMS APPEAL BOARD/ |Putative |
| |NON-REFOULEMENT CLAIMS PETITION OFFICE |Respondent |
| |and | |
| |DIRECTOR OF IMMIGRATION |Putative |
| | |Interested Party|
__________________________
Before: Hon Barma JA and Mimmie Chan J in Court
Date of Hearing: 18 August 2026
Date of Judgment: 1 September 2026
________________
J U D G M E N T
________________
Hon Mimmie Chan J (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge
KW Lung (“the Judge”) given on 19 November 2025[1] (“the Leave
Decision”) refusing to grant leave for the 2nd applicant (the 1st
applicant’s daughter, a minor) to apply for judicial review. It is
pertinent to note that the Leave Decision concerned only the 2nd
applicant’s application for leave to apply for judicial review, as
the 1st applicant’s own leave application has previously been
dismissed in a separate set of proceedings in HCAL 1365 of 2019[2]
(Leave Decision, [2]-[3]).
2. In the present case, the 2nd applicant’s intended judicial review
was against the decision of the Torture Claims Appeal
Board/adjudicator of the Non-Refoulement Claims Petition Office
(“the Board”) dated 23 May 2025 (“the Board’s Decision”) dismissing
the 2nd applicant’s appeal against the decision of the Director of
Immigration dated 17 June 2024 rejecting the 2nd applicant’s non-
refoulement claim.
Background
3. The 1st applicant is a national of Indonesia. She is the mother of
the 2nd applicant, who was born in Hong Kong on 26 April 2023. The
2nd applicant’s father (“the Father”), who is married to the 1st
applicant, is a national of Pakistan. The 1st applicant and the
Father were both non-refoulement claimants whose claims have been
dismissed by the Board and whose subsequent applications for leave
to apply for judicial review of their respective Board decisions
have been dismissed by the Court.
4. The 2nd applicant’s non-refoulement claim (as well as her leave
application in the Court below and the present appeal) was lodged
by the 1st applicant on her behalf.
5. The background to this case, the 2nd applicant’s basis to her claim
and the reasons given by the Board in its Decision have been set
out therein and summarised by the Judge in the Leave Decision at
[6]-[13], which will not be repeated.
6. After considering the documents filed as well as the submissions
made by the 1st applicant (on behalf of the 2nd applicant) at the
hearing of the leave application, the Judge dismissed the
application for the reasons stated in the Leave Decision.
Appeal to this court
7. By a Notice of Appeal dated 2 December 2025, the 1st applicant (on
behalf of the 2nd applicant) stated:
“The Judgement is not reasonable. I plead to the court to
reconsider my application. I want to appeal against the
decision.”
8. In the 1st applicant’s written submissions dated 23 July 2026
(lodged on behalf of the 2nd applicant), she complained without
elaboration or particulars inter alia that (i) as an unrepresented
litigant, she did not understand how the 2nd applicant’s case was
decided; (ii) she and/or the 2nd applicant were never provided with
“proper legal and language assistance”; (iii) the Board breached
procedural fairness; (iv) the Leave and/or the Board Decision(s)
were “unreasonable or irrational in the public law sense or are a
result of procedural errors or unfairness”.
9. We heard the appeal on 18 August 2026, at which the 1st applicant
appeared in person. At the hearing, the 1st applicant had nothing
further to add to the matters already set out in the documents
filed with the Court.
Discussion
10. As this court has often stated, an appeal to the Court of Appeal is
not a fresh application for judicial review. It is necessary to
identify some error on the part of the judge that would justify
this court in intervening: see Nupur Mst v Director of Immigration
[2018] HKCA 524 at [14]. 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. An
appeal is not the occasion for regurgitating arguments advanced and
rejected by the judge or for running arguments which could and
should have been raised but were not raised before the judge. In
the determination of an appeal, the Court of Appeal focuses on the
decision of the judge and the court will only reverse that decision
if an appellant could demonstrate that the judge made errors of law
or failed to take account of relevant matters already placed before
the court or was otherwise plainly wrong.
11. Notwithstanding that the 2nd applicant’s claim rides upon the
factual bases of the 1st applicant’s and the Father’s non-
refoulement claims, it is necessary for this court to consider the
position of the 2nd applicant separately, as she is a minor and had
not been legally represented in these proceedings as required under
Order 80, rule 2 of the Rules of the High Court (Cap 4A). See
Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture
Claims Appeal Board/Non-Refoulement Claims Petition Office [2020]
HKCA 971.
12. We note that despite previous directions made by the Registrar of
Civil Appeals, no steps have been taken to comply with the
requirements under Order 80, rule 2. Accordingly, directions were
thereafter given by the Registrar for the appeal to be referred to
this Court for determination.
13. The proper approach to deal with children’s non-refoulement claims
has been considered by the Court of Appeal in Fabio Arlyn Timogan
and Re Jasvir Singh [2021] HKCA 53 which established that:
a) Non-refoulement claims by children, even if based on the same
set of primary facts, are separate from the claims advanced by
their parents and need to be considered as such having regard
to the personal circumstances of the children;
b) Even if the claims were based on the same set of primary
facts, it would be an error of law if the decision-maker
simply decided all the claims as if they were one composite
claim without giving separate consideration to the personal
circumstances of each claimant separately. It does not
necessarily follow from the dismissal of the claim by a parent
that the children’s claims could be dismissed without further
consideration of their personal situations;
c) Ill-treatment which does not reach a level constituting
persecution in the case of an adult may do so in the case of a
child.
14. The position is therefore that while the reality remains in the
majority of cases involving minors that the factual basis of the
minor’s claim would be dependent on or even entirely rest upon that
of the parent’s, regard must be had to the personal circumstances
of the minor (and any risks of harm posed to the minor) by the
decision-maker. In this case, like the majority of similar cases
involving minor applicants, the basis of the 2nd applicant’s
perceived fear or risk of harm upon refoulement rested upon the
primary case of her mother’s and the Father’s.
15. The 2nd applicant’s case, as presented to the Board by the
1st applicant and the Father (who both appeared before the Board at
the hearing), was (i) in respect of the 1st applicant and her fears
of returning to Indonesia with the 2nd applicant, that her ex-
fiancé might force her to marry him; (ii) in respect of the Father
and his fears of returning to Pakistan with the 2nd applicant, that
by reason of a fight which occurred in 2005 between himself (and
others) and members of the Pakistan People’s Party (“the PPP”) and
him having seriously injured the leg of a PPP member, he fears
revenge in the form of physical harm by members of the PPP.
16. It was the consensus between the 1st applicant and the Father that
the family would, if the 2nd applicant’s non-refoulement claim was
unsuccessful, remain together whether they were to reside in or
return to Indonesia or Pakistan (Board’s Decision. [59], [61]).
17. In the application below, the Judge noted that the Board had in its
Decision considered the 2nd applicant’s case separately while also
taking into account the situation of her parents, and that the
Board had thoroughly considered the 2nd applicant’s circumstances
should she return to Indonesia or Pakistan with her parents (Leave
Decision, [16]-[18]).
18. Having considered and subjected the Board’s Decision to anxious
scrutiny, we agree with the Judge’s observations and we are also of
the view that the Board has discharged its duties in respect of its
determination of the 2nd applicant’s claim/appeal.
19. In the present case, the Board rejected the alleged fear of risk of
harm as advanced by the 1st applicant and the Father. The 1st
applicant’s fear of harm in respect of her ex-fiancé was not made
out and did not reach the required minimum threshold of severity
due to, inter alia, the fact that she has never suffered any
physical harm at the hands of her ex-fiancé and that the latter has
done nothing more than asking her family for her whereabouts. As
regards the Father’s fear of harm from the PPP, his evidence was
inconsistent and contradictory, which led the Board to find that he
never in fact injured any member of the PPP, nor has he ever
attracted the adverse interest of the PPP.
20. Separately and in respect of the situation of the 2nd applicant,
the Board found as a matter of fact that the 1st applicant’s ex-
fiancé was unaware of the 2nd applicant’s birth or existence, nor
has the 2nd applicant ever faced any threat of harm from him
(Board’s Decision, [75]). Further, the Board also found, by reason
of its rejection of the basis of the Father’s alleged fear of harm,
that there was no real chance of the 2nd applicant facing any harm
should she return to Pakistan.
21. Moreover, the Board found that (i) should the 2nd applicant return
to Indonesia, she will benefit from the 1st applicant’s family ties
and support at her home town (Board’s Decision, [56]) as well as
basic healthcare and education services (Board’s Decision, [82]);
(ii) should the 2nd applicant return to Pakistan, the 1st applicant
will reside with her and it was not perceivable that she would
become the child of a single parent (Board’s Decision, [61]); (iii)
the 2nd applicant would also have access to basic welfare benefits
such as healthcare and education in Pakistan (Board’s Decision,
[114]).
22. The Board’s determination of the 2nd applicant’s claim for the
reasons stated in its Decision therefore cannot be faulted. We
also do not consider there to be any indication that the merits of
the 2nd applicant’s claim (or any underlying matter that may
support minor-specific non-refoulement grounds) had not been
adequately explored before the Judge due to the lack of legal
representation.
23. The 2nd applicant has failed to demonstrate how the Board had acted
unlawfully or procedurally unfairly in reaching its Decision with
regards to her appeal/claim, or how such Decision could be said to
be Wednesbury unreasonable.
24. In the premises, the 2nd applicant has advanced no viable grounds
of appeal against the Judge’s decision, and her appeal is
accordingly dismissed.
|(Aarif Barma) |(Mimmie Chan) |
|Justice of Appeal |Judge of the |
| |Court of First Instance |
The 1st applicant appearing in person
The 2nd applicant (the 1st applicant’s daughter, minor), unrepresented,
did not appear
-----------------------
[1] [2025] HKCFI 4993
[2] [2024] HKCFI 2259; the leave applications of the 2nd and 3rd
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hÅv€h¿•5?B*[pic]CJPJph h){h¿•5?B*[pic]CJPJphh¿•5?B*[pic]C applicants (the
other two daughters of the 1st applicant) in this action were also
dismissed.
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Appeal history
NANIK SULASTRI KUWAT AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CA · [2026] HKCA 1511
This judgment