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

CACV 430/2026, [2026] HKCA 1105

On Appeal From [2026] HKCFI 2171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 430 OF 2026

(ON APPEAL FROM HCAL NO 1538 OF 2022)

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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):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims)  Jeffrey Chau (“the Judge”)  dated 20 April 2026 ([2026] HKCFI 2171)  (“the Leave Decision”)  dismissing her application for leave to apply for judicial review (“the Leave Application”)  against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 2 December 2022 (“the Board’s Decision”), whereby the Board dismissed her appeal against the decision of the Director of Immigration (“the Director”)  dated 17 December 2021 (“the Director’s Decision”), refusing her non-refoulement claim.

2.  The applicant is a national of Indonesia.  The basis of her non-refoulement claim is that, if refouled, she will be ill-treated or even killed by her creditor if she returns to Indonesia.  Her background, the basis of her claim and arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal were set out in the Board’s Decision: see [3] of the Leave Decision.  The Board accepted that she feared that her creditor might harm or kill her if she returned to Indonesia. However, the Board found that the creditor charged a reasonable interest rate and was not a loan shark, had not visited the applicant’s home to look for the applicant despite the loan being outstanding. The Board concluded that there was insufficient evidence to show that the creditor intended to enforce repayment by harming the applicant, and that the applicant was unlikely to suffer severe ill-treatment or serious harm on return to Indonesia. Furthermore, the Board found that the loan arrangement was a private matter, in which the state was not involved. The Board also found that effective state protection was available for the applicant and that reasonable and safe internal relocation was possible.

3.  The Judge set out his reasons for refusing the Leave Application at [4] – [10] of the Leave Decision.  He noted that the applicant did not state any grounds of appeal or identify any error of the Board. The Judge further observed that the Board had analysed the evidence and found that the applicant’s allegations were insufficient to make out any of the applicable grounds for non-refoulement. The Judge found no errors in the Board’s Decision.

4.  By the Notice of Appeal filed on 27 April 2026, the applicant complained that the Director’s Decision was unfair and that the Director, the Board and the Court erred in failing to consider the presence of state acquiescence.  She further complained that the Board failed to conduct adequate inquiries before finalising determination.   The applicant then asserted that her circumstances had not been properly weighed or recognised by the Director and the Board. 

5.  In support of her appeal, the applicant also lodged written submissions on 26 May 2026.  In those submissions, she complained that the Board relied selectively on Country of Origin information (“COI”)  and made insufficient inquiries before rejecting the applicant’s claim.  She further asserted that the Court failed to give sufficient reasons explaining why the applicant’s grounds were not arguable, and that the gravity of the risk faced by her was not properly weighed.  She then alleged that these matters raised various questions of law including the proper standard of review, the duty to conduct sufficient inquiry, the lawful treatment of COI, the intensity of scrutiny required where fundamental rights were engaged and the proper approach at the leave stage of judicial review, and further claimed that these alleged questions were of general public importance.

6.  We heard the appeal on 15 June 2026.  An Indonesian interpreter was also present to provide language assistance.  At the hearing, the applicant said that she was already married and was applying for a dependent visa, and did not want to go back to Indonesia yet.

DISCUSSION

7.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

8.  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

9.  At the outset, the assertions made by the applicant are all new grounds not raised before the Judge.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  On this basis alone, her appeal must be dismissed.

10.  In any event, we see no merit in the applicant’s contentions.  Her assertions are general and bare allegations unsupported by reference to the facts of her case.  As regards state acquiescence, it is clear that the Board had in mind the relevant principles and considerations: see [31] of the Board’s Decision. However, even on the applicant’s own evidence before the Board, she had never reported her creditor to the local police: see [16] of the Board’s Decision.  It was therefore open to the Board to find that the state would not have known about the issues between the applicant and her creditor: see [36] of the Board’s Decision. In the circumstances, it cannot be said that the Board failed to consider the presence of state acquiescence.  Nor can the Judge be criticised for not reopening this issue of fact.

11.  No COI has been identified which the Board supposedly omitted to consider. There is no explanation of what inquiries should supposedly have been made before the Board came to its conclusion. On the contrary, the Board considered the applicant’s case in detail and asked questions of the applicant at a hearing. As is evident from the Leave Decision and the Board’s Decision, the Judge and the Board gave detailed reasons for their respective decisions.  As to the assessment of the gravity of the risk faced by the applicant, this was a matter within the province of the Board. The applicant has not identified where the Board supposedly went wrong in this regard.

12.  As noted by the Judge at [8] and [10] of the Leave Decision, there was no error of law, procedural unfairness or irrationality in the Board’s Decision and the applicant’s intended judicial review is not reasonably arguable.  As for the applicant’s claim that she is currently applying for a dependent visa to stay in Hong Kong, this has no relevance to the applicant’s grounds for seeking non-refoulement. We therefore see no basis to interfere with the Leave Decision.

13.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.