SWARI NILA SAHABTI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 28/2026, [2026] HKCA 1224

On Appeal From [2025] HKCFI 6427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 28 OF 2026

(ON APPEAL FROM HCAL NO 2390 OF 2024)

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J U D G M E N T

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

1.  This is the 1^st and 2^nd Applicants’ appeal against the order of Deputy High Court K W Lung (“the Judge”) dated 30 December 2025 (“the Order”) in HCAL 2390 of 2024 (“the 2024 Application”), whereby the Judge refused to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 21 November 2024 (“the Board’s Decision”), and struck out the Applicants’ duplicate application in HCAL 1662 of 2025 (“the 2025 Application”). In the Board’s decision, the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 9 October 2023.

2.  The 1^st and 2^nd Applicants are mother and son, and are nationals of Indonesia.  The 1^st Applicant gave birth to the 2^nd Applicant out of wedlock in Hong Kong on 21 March 2023.  The father of the 2^nd Applicant is a national of Bangladesh and also a non-refoulement claimant.  The Applicants allege that, if refouled to Indonesia, they will be harmed or killed by the 1^st Applicant’s family and the local community for giving birth to the 2^nd Applicant out of wedlock[1].  The Applicants’ background, the basis of their claims, the findings of the Board and its reasons for dismissing their appeals 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 §§13, 14, 18 and 19 of the CALL-1 Form).  We do not propose to repeat them here.

3.  The Judge’s reasons for striking out the 2025 Application and dismissing the 2024 Application are set out at §§5-10 and 23-29 of the CALL-1 Form respectively.  In gist, the Judge found that the 2025 Application is a clear case of duplication of proceedings, and the Applicants failed to raise any or any valid grounds to challenge the Board’s Decision or show that their intended judicial review had any realistic prospect of success.

THIS APPEAL

4.  In their Notice of Appeal filed on 13 January 2026, the Applicants state the following:

“1. Failed to consider the fact I raised into my claim that why I would not return to my country.

2. Failed to consider the fact BOR 2 and BOR 3 risk.” [sic]

5.  On 8 June 2026, the Applicants lodged their written submissions in support of the present appeal.  In those submissions, the Applicants essentially repeat their claimed fear of returning or going to Indonesia, and make some general allegations of jurisdictional error, error of law, breach of natural justice, irrationality, error of fact, misapplication of the burden and standard of proof, failure to consider country of origin information, and disproportionality/incompatibility with constitutional rights.

6.  At the hearing of the appeal on 9 July 2026, the 1^st Applicant had nothing to say on her own behalf or on behalf of the 2^nd Applicant.

DISCUSSION

The 1^st Applicant

7.  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 v Director of Immigration [2018] HKCA 524, at §14(6)).

8.  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.

9.  The matters raised in the Notice of Appeal and submissions are all general assertions without particulars, and do not constitute valid grounds of appeal against the Order.

10.  The 1^st Applicant’s appeal has no merit, and is dismissed.

The 2^nd Applicant

11.  The 2^nd Applicant is a minor.  The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53.  It is not necessary to repeat the same in this judgment.

12.  In the present case, both the 1^st and 2^nd Applicants were legally represented before the Board, and the father of the 2^nd Applicant gave oral evidence on behalf of the 2^nd Applicant at the Board hearing (see §§26 and 27 of the Board’s Decision).  Although the Board did not deal with the 2^nd Applicant’s case under a separate section, we are satisfied that, in substance, the Board did consider the 2^nd Applicant’s case separately. 

13.  The Board considered the evidence of the 1^st Applicant, and found that her evidence was problematic and contained numerous inconsistencies, and she had failed to provide any satisfactory explanations for the inconsistencies.  The Board found that the 1^st Applicant’s account of events was not truthful, and rejected her claim (see §§84-89 of the Board’s Decision).  Once the 1^st Applicant’s claim was rejected, the 2^nd Applicant’s claim, insofar as it was premised upon the same factual basis underlying the 1^st Applicant’s claim, had no factual support.  In any event, the Board found that state protection and reasonable internal relocation options would be available to both Applicants in Indonesia, and they would be entitled to basic services like other Indonesians without any real chance of discrimination (see §§89 and 165-167 of the Board’s Decision). 

14.  The Board also considered the 2^nd Applicant’s claim if he was to go to Bangladesh with her father.  The Board, after considering the evidence of the 2^nd Applicant’s father, rejected his claim for non-refoulement protection, which was advanced on the basis that he would face risks of harm from his paternal uncle over a land dispute or from members of the Awami League due to his involvement in another political party in Bangladesh (see §§101, 147 and 155 of the Board’s Decision).  The Board held that the 2^nd Applicant’s claim had no factual support from the father’s claim either (see §157 of the Board’s Decision).  The Board also found that reasonable internal relocation was likewise a viable option for the 2^nd Applicant in Bangladesh (see §168 of the Board’s Decision)

15.  In all, the Board was not satisfied that the 2^nd Applicant would face any real risk of harm or ill-treatment from the 1^st Applicant’s family if refouled to Indonesia, or from his father’s paternal uncle or members of the Awami League if refouled to Bangladesh.  We do not see that there was any relevant minor-specific matter(s) relating to the 2^nd Applicant’s claim which the Board ought to have considered, but failed to do so.  The fact that the Board considered the non-refoulement claim of the 2^nd Applicant’s father in the context of an assessment of the 2^nd Applicant’s non-refoulement claim is clear evidence that the Board did not consider the 1^st and 2^nd Applicants’ non-refoulment claims as a composite one, but considered the 2^nd Applicant’s non-refoulement claim separately from that of the 1^st Applicant.

16.  The Judge did not err in principle or approach.  There is no valid ground to intervene in the Judge’s decision to reject the 2^nd Applicant’s application for leave to apply for judicial review.

17.  The 2^nd Applicant’s intended judicial review is not reasonably arguable.  So is his appeal against the Judge’s decision.  Accordingly, we dismiss the 2^nd Applicant’s appeal.

18.  For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the Rules of the High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity. 

[1]  See §§2 and 3 of the Board’s Decision.