ANNI NURIL HAMDATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 1241/2025, [2026] HKCA 279

On Appeal From [2025] HKCFI 6322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1241 OF 2025

(ON APPEAL FROM HCAL NO 2096 OF 2023)

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JUDGMENT

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 19 December 2025 (“the Order”) refusing 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 17 April 2023, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 December 2021.

BACKGROUND

2.  The Applicant is a national of Indonesia.  She last entered Hong Kong to work as a foreign domestic helper on 9 July 2021. Upon the early termination of her employment contract, she did not depart and had overstayed since 3 November 2020.  On 20 January 2021, she surrendered herself to the Immigration Department.  On 3 March 2021, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by two moneylenders due to her inability to repay her deceased husband’s debts.  Details of the Applicant’s claim have been summarised by the Judge at §§8-14 of the CALL-1 Form.

3.  By a Notice of Decision dated 24 December 2021 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board.  On 17 April 2023, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§15-22 of his decision, as follows:

“[15] The Board found the Applicant’s claim incredible. It noted that the Applicant gave three different versions about the frequency of death threats issued by the finance companies. She said in her [Non-refoulement Claim Form (‘NCF’)] that since her husband’s death in November 2019 until the date she submitted the NCF in September 2021 the finance companies had been threatening once a month to kill her, ie a total of 26 times. At the screening interview, she said that the threat continued for about half a year since her husband’s death and stopped since May 2020, ie six times only. But at the hearing before the Board, she said the finance companies repeated the threat every month until March 2021. The Board also found the Applicant’s assertion that it was not until October 2020, eleven months after the threat was first delivered, that her father told her about the threats incredible.

[16] The Applicant relied on a document purporting to be a demand letter issued by one of the finance companies as evidence of her husband’s debt, but the name of the debtor stated in that letter was ‘Ani Eko’ which was not the name of her husband, Eko Budi. She explained the discrepancy on the basis that her name, Anni Nuril Hamdati, was named as a guarantor of the debt. The Board rejected her explanation because that document made no mention of any guarantor.

[17] The Board further held that it was inherently improbable that she would make repayment to the finance companies without ascertaining their identities. As she was unable to provide details about the identities of the finance companies and the unsatisfactory state of her evidence, the Board considered she was not a truthful witness and rejected her evidence.

[18] Having dismissed the Applicant’s only ground for claiming protection, ie the alleged threats from the finance companies, the Board found the Applicant had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Indonesia. Hence, the Board dismissed her appeal against the [Director’s Decision].

[19] Nevertheless, the Board also assessed her claim, in the alternative, on the basis of the case as she asserted. The Board made the following further finding. It accepted her evidence that she remarried and her current husband (a Hong Kong citizen) had been helping her repay the debts. The outstanding amounts owed to the two finance companies as at the time of the hearing before the Board were only HK$2,400 and HK$6,000. Hence, the Board found if she kept up with the repayments, she would be able to pay off the debts and the finance companies would have no incentive to harm her.

[20] After referring to credible and authoritative country of origin information (‘COI’) including the World Factbook published by the United States State Department and to the website of World Population Review, the Board found it difficult for the finance companies to locate the Applicant if she should relocate to populous cities such as Denpasar or Medan. It considered the Applicant’s fear that she will be located by the finance company a speculation on her part. It found with her age, education and work experience, it would not be unreasonable to expect her to relocate to Medan or Denpasar upon her return to Indonesia to avoid her risk of harm.

[21] The Board found that the Applicant would not be at real risk of harm upon her return to Indonesia. It found her dispute with the finance companies were private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion. The persecution and harm from the finance companies did not arise from one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the ‘Refugees Convention’). It found the ill-treatment from the finance companies did not attain the minimum level of severity and had nothing to do with the Indonesian government. Hence, it does not meet the requirement of ‘torture’ under section 37U(1) of the Immigration Ordinance. There is also no evidence that the Applicant is subject to capital punishment or at risk of genocide.

[22]     Applying the law applicable to the non-refoulement protection under the [unified screening mechanism (‘USM’)] to the above facts, the Board found, even on the case as she asserted, the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the [Director’s Decision].”

THE JUDGE’S DECISIONS

5.  On 23 November 2023, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  By then, she was over four months late in making her leave application.

6.  On 28 February 2024, the Judge gave a decision refusing to extend time for the Applicant to apply for leave to apply for judicial review, and dismissed her leave application ([2024] HKCFI 627) (“the 2024 Decision”). The 2024 Decision and the order dated 28 February 2024 (“the 2024 Order”) sent to the Applicant by post were returned undelivered on 19 March 2024.

7.  On 8 October 2025, the Applicant took out a summons in the court below for extension of time to appeal against the 2024 Order.

8.  In view of the Applicant’s application for extension of time to appeal and the unsuccessful delivery of the 2024 Decision and the 2024 Order by post, the court held, and the Applicant attended, an oral hearing on 3 November 2025.  At that hearing, the Applicant agreed to withdraw her application for extension of time to appeal, and the Judge set aside the 2024 Order, and granted the Applicant an extension of time to apply for leave to apply for judicial review of the Board’s Decision.  The Judge held a further hearing on 1 December 2025, at which the Applicant appeared in person and made submissions in support of her leave application.    

9.  The Judge gave his decision refusing to grant leave to apply for judicial review by way of a CALL-1 Form on 19 December 2025, in which the Judge considered the four grounds advanced by the Applicant in the Form 86 for her intended judicial review.  They were summarised by the Judge at §26 of the CALL-1 Form, as follows:

“(1) The [Board’s] Decision was not reasonable and unfair in that the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence. Her right to life is protected under BOR 2 risk ground.

(2) The Director failed to give proper weight to the presence of state acquiescence. She was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3) The Board acted unfairly by placing too much weight on COI without having regard to her personal background and experience.

(4)     The Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond.”

10.  The Judge’s reasons for rejecting the Applicant’s four intended grounds of judicial review were fully set out at §§27-31 of the CALL-1 Form, which it is not necessary to repeat in this judgment.  At §§32-34 of the CALL-1 Form, the Judge gave his overall conclusion as follows:

“[32] Having rigorously examined the [Board’s] Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

[33] The Board’s primary finding is that the Applicant is incredible and rejected her evidence. This finding is a finding of fact solely within the realm of the Board to make, which this Court in an application for judicial review will not intervene, save for errors of law, procedural unfairness and irrationality.

[34]     The Board went further and assessed the Applicant’s claim on the basis of her case as she asserted, but found she is not entitled to protection under any of the four applicable grounds under the USM.  It is not the Applicant’s case that she is subject to a death sentence or at risk of genocide.  The Board found that the ill-treatment suffered by the Applicant did not attain the minimum level of severity to entitle her to protection, that no government or public officials were involved in the ill-treatment of the Applicant.  It found the harm arising from the Applicant’s disputes with the finance companies were private disputes and fall outside the protection of the Refugees Convention.  These are mixed finding of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted.  The Applicant could have no reason to complain about the Board’s finding of these primary facts.  The finding of facts are also exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law or procedural unfairness in the Decision. The [Board’s] Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The [Board’s] Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

11.  In her Notice of Appeal filed on 29 December 2025, the Applicant states the following:

“I am not agree with the decision maker authorities, decision maker not give me justice. They were totally relied on some web news which officially not recognized by the authorities. There is not proper investigation in my case. I do not think my case determined fairly. My life have threating in my home country. Please grant my case. Thanks.” [sic]

12.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 29 December 2025.  Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

13.  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)).

14.  Further, the assessment of evidence, COI, 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.

15.  The matters raised by the Applicant in the Notice of Appeal are all general assertions without particulars.  They do not constitute any valid grounds of appeal against the Order. 

16.  The Applicant’s appeal has no merit, and is dismissed.

17.  This judgment is written in English although the Board’s Decision was written in Chinese, because the Form 86 and the documents filed by the Applicant in the proceedings below, the CALL-1 Form as well as the Notice of Appeal are all written in English.  If required, the Applicant may make an appointment with the clerk to this Court for an oral interpretation of this judgment in the Applicant’s preferred language at a mutually convenient time in the Court’s premises.

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

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

[3] This refers to the 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.