RE MURYATIKA WULAN LINDA ARIE

CACV 52/2026, [2026] HKCA 485

On Appeal From [2026] HKCFI 178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 52 OF 2026

(ON APPEAL FROM HCAL NO 1258 OF 2025)

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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):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 14 January 2026[1] refusing her application for leave to apply for judicial review against the decision dated 8 April 2025 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 16 January 2025 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2] , BOR 3 risk[3] , persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Indonesia. She last arrived in Hong Kong in January 2019 to work as a domestic helper. She did not leave after her employment contract was prematurely terminated in October 2022 and overstayed. She was arrested in November 2024, and she lodged a non-reform and claim shortly thereafter. Her claim was made on the basis that if she returned to Indonesia, she would be harmed or killed by a loan shark named “Willi” because she was unable to repay a loan which she and her husband had borrowed for the purpose of her husband’s medical treatment. Details of the applicant’s background, the basis of her claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal have all been set out in the Board’s decision[6] : see [4] of the Form CALL-1. After considering the documents filed by the applicant and the oral submissions of the applicant in support of the application for leave to apply for judicial review, the Judge dismissed the application for reasons stated at [10] – [16] of the Form CALL-1.  We will not repeat them here.

Appeal to this Court

3.  On 21 January 2026, the applicant filed her Notice of Appeal against the Judge’s decision and stated that the Judge has failed to find any error in the Board’s decision, but she could show many such errors. 

4.  The applicant lodged written submissions in which she stated that she experienced serious threats and acts of violence by individuals with significant influence in her local area. She said she did not receive effective state protection and could not relocate within Indonesia, and that she would face violence, persecution and serious harm if refouled. 

5.  Shortly before the scheduled appeal hearing, on 25 February 2026, the applicant applied for legal aid and the Memorandum of Notification of an Application for Legal Aid was filed with the court on 26 February 2026.  Pursuant to section 15 of the Legal Aid Ordinance (Cap.91) and regulation 7A of the Legal Aid Regulations (Cap.91A), these proceedings are to be stayed for 42 days unless the court otherwise orders.  However, the application for legal aid was made less than two weeks before the scheduled appeal hearing. The applicant was informed on 21 January 2026, the day when she lodged her Notice of Appeal, that the hearing of the appeal had been fixed on 9 March 2026, yet the application for legal aid was not made until over a month later; no reason was given as to why the application had been made at this late stage.  At the hearing, we informed the applicant that we were minded to lift the stay of the proceedings. The applicant indicated that she had no submissions in this regard, and indeed she agreed to the lifting of the stay and to proceeding with the hearing of her appeal. Accordingly, we lifted the stay at the hearing.

6.  The applicant further indicated that she had nothing further to add to what had already been stated in her Notice of Appeal and written submissions.

Discussion

7.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

8.  In the present case, the Board found on the evidence that neither the applicant, her husband nor her family members had ever been harmed by the loan shark even though neither the applicant nor her husband had fully repaid the loan. Willi had called the applicant on the phone, and the applicant had simply ignored him and blocked his phone number; the last time she received a call from him was in December 2024. The applicant had never sought assistance from the police in Indonesia as she believed that they would not bother to help, it being a personal loan dispute.  There was nothing to suggest that the applicant would face any real risk of harm entitling her to non-refoulement protection under any of the applicable grounds. Nevertheless, the Board went on to assess, on the available country of origin information, that reasonable state protection would be available to the applicant and that internal relocation would be a viable option if she returned to Indonesia.

9.  Insofar as the applicant says that she could find many errors in the Board’s decision, we do not agree that her Notice of Appeal or written submissions have identified any. The applicant’s complaint that she has experienced serious threats and acts of violence in Indonesia simply seeks to repeat the case which she advanced before the Board and which was rejected on the facts as found by the Board. They were findings which were open to the Board on the evidence it received, and for the reasons it gave. We see no proper basis for the court to interfere with such findings. As for the complaint that the applicant did not receive effective state protection, the Board noted that the applicant had simply never sought assistance from the police. Finally, regarding the possibility of relocation, the applicant’s assertion that there was no safe place for her to relocate to is merely a bare assertion, and fails to engage with the reasons of the Board in finding that relocation was a viable option for the applicant, a healthy mature adult with nine years of education and twelve years of working experience, in a large and populous country.

10.  Equally, the applicant has not been able to demonstrate with particulars any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are satisfied that the Judge gave proper and adequate reasons for his conclusion that the intended judicial review has no prospect of success.  

11.  The applicant’s appeal is accordingly dismissed.

[1] [2026] HKCFI 178.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] https://legalref.judiciary.hk/doc/ judg/html/vetted/other/en/ 2025/HCAL001258_2025_files/ the_Board's_Decision.pdf