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

CACV 151/2026, [2026] HKCA 818

On Appeal From [2026] HKCFI 871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2026

(ON APPEAL FROM HCAL NO 233 OF 2021)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 11 February 2026 refusing to grant the applicant, a national of Indonesia, leave to apply for judicial review (“Judge’s Decision”). The intended judicial review sought to quash the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 22 February 2021 (“Board’s Decision”), which upheld the decision of the Director of Immigration (“Director”) dated 9 July 2020 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s claim was made on the basis of a fear of being harmed or killed by villagers of her hometown due to a religious dispute. Details of the applicant’s background, the circumstances giving rise to her said alleged fear, the arguments advanced by her before the Board and the Board’s reasons for rejecting her appeal are all set out in the Board’s Decision[1]. For the grounds advanced by the applicant in support of her application for leave to apply for judicial review and the Judge’s reasons for refusal, see [9] – [13] of the Form CALL-1.  

Appeal to this Court

3.  By the notice of appeal filed herein on 23 February 2026, the applicant appealed against the Judge’s Decision, essentially on the grounds that the Judge erred in law in (1) finding no error in the Board’s assessment of future risk, (2) not considering whether there was religious persecution by non-state actors, (3) not properly analysing the sufficiency of state protection, (4) not considering whether internal relocation was unduly harsh for the applicant, and (5) placing weight on the deficiencies of the applicant’s Form 86.

4.  By his written submissions dated 25 March 2026, the applicant contended (1) that the Judge failed to scrutinise the Board’s Decision; (2) that the Judge erred in finding the dispute mentioned by the applicant was private in nature; (3) that the Judge erred in finding that state protection was sufficient; (4) that the Judge erred in finding that internal relocation was viable for the applicant; and (5) that the Judge erred in relying on the deficiencies of the Form 86 rather than the substance of the applicant’s challenge.

5.  At the hearing, the applicant had nothing to add.

Legal principles

6.  First, the primary decision-makers in a non-refoulement claim are the Director and the Board. They alone assess the evidence and find relevant facts. An application for leave for judicial review does not provide a further avenue of appeal. The court will not re-assess the non-refoulement claim. It will intervene by way of judicial review only for errors of law, procedural unfairness or irrationality.

7.  Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for leave for judicial review. This court is concerned with the decision of the judge at first instance, which it will consider in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. If no such error is shown, the appeal should be dismissed.

8.  In support, 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].

Discussion

9.  In the present case, the Board found no real risk of harm to the applicant upon refoulement because the dispute is a private and personal matter without involvement of the state; the alleged ill-treatment of the applicant failed to meet the minimum level of severity; reasonable state protection would be available; and internal relocation to Jakarta, Surabaya or Bali are viable options for the applicant. These are findings of fact open to the Board on the evidence it received and for the reasons it gave. The applicant has failed to show any or any reasonably arguable public law error in the Board’s Decision.

10.  Equally, the applicant has not demonstrated any error in the Judge’s Decision. We are not satisfied that there is any error in the Judge’s Decision.

11.  The applicant’s appeal is accordingly dismissed.