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

CACV 479/2026, [2026] HKCA 1180

On Appeal From [2026] HKCFI 2549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 479 OF 2026

(ON APPEAL FROM HCAL NO 843 OF 2022)

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J U D G M E N T

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Hon Mimmie Chan J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bonnie Cheng (“the Judge”) given on 5 May 2026[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 19 July 2022 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 28 July 2021 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of her claim and the Board’s reasons in reaching the Board’s Decision have been set out therein[2] as well as by the Judge in the Leave Decision at [4]-[5] and [10], which will not be repeated. 

3.  After considering the documents filed by the applicant as well as the oral submissions she made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [6]-[12] of the Leave Decision.

Appeal to this court

4.  In a Notice of Appeal dated 11 May 2026, the applicant stated inter alia that her life would be in danger should she be refouled, and that she requested for this Court to allow her to remain in Hong Kong for “at least 4-5 years”.

5.  By written submissions dated 17 June 2026, the applicant complained inter alia about the alleged prejudice caused by the lack of language and legal assistance in the proceedings below. She also contended that the Board had acted in a procedurally unfair manner (without elaboration or particulars) in dealing with her appeal and that it did not have adequate regard to the problems in her home country. 

6.  We heard the appeal on 2 July 2026, at which the applicant appeared in person. At the hearing, the applicant submitted that after the handing down of the Leave Decision, she married in Hong Kong and gave birth to her daughter. She also indicated that she has applied to the Immigration Department for a dependent visa, the result of which is pending.

7.  The applicant applied to hand up further documentary evidence including her marriage certificate, the birth certificate of her daughter and a short written statement on the reasons behind her desire to remain in Hong Kong. Although the introduction of new evidence is generally not permitted on appeal, we have on this occasion exceptionally considered the said documents, which show that the applicant married in 2022, gave birth to her daughter in September 2023, and that she wished to remain in Hong Kong as she needed to care for her daughter.

Discussion

8.  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.

9.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence. General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

10.  In the present case, the Board considered that the material parts of the applicant’s evidence, on which the crux of her claim was based, were inconsistent and incredible. The Board outrightly rejected (as a matter of fact) the applicant’s allegation that she had taken out a loan from a moneylender and thus also her claim that she was at a risk of harm from such moneylender. In any event, the Board found that there was adequate state protection and suitable options of internal relocation available to the applicant in order to minimise the risk of harm, if any. These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [6]-[12]. We see no basis to interfere.

11.  The applicant has accordingly failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

12.  We are unpersuaded by the applicant’s complaint of prejudice caused by her lack of legal representation. As this Court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. See ReZunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and ReAhmed Syed Rafiq [2018] HKCA 178.

13.  We are equally unpersuaded by the applicant’s complaint as to the apparent lack of language assistance, as she was clearly able (whether by herself or with the assistance of others) to lodge comprehensible English documents and submissions with the Court and in the processing of her claim below.

14.  Finally, the additional documents submitted by the applicant at the hearing pertain to her separate application to the Immigration Department for a dependent visa, which in any event are irrelevant for present purposes and do not advance her position in the present appeal.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision. There is therefore no merit in the appeal and we dismiss the appeal accordingly.