SARI OLIVIA MUTIARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 327/2026, [2026] HKCA 1040

On Appeal From [2026] HKCFI 1578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 327 OF 2026

(ON APPEAL FROM HCAL NO 753 OF 2021)

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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 decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 March 2026 by which her application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board (“the Board”) dated 10 May 2021 (“the Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration rejecting the Applicant’s non-refoulement claim.

2.  The Applicant is a national of Indonesia. The basis of her non-refoulement claim was set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in [9] of the Form CALL-1 dated 17 March 2026. In gist, the Applicant claims that if she returns to her home country, she will be harmed or killed by her husband’s creditor (“the Creditor”) for failing to repay her husband’s debt, and/or by her husband (“the Husband”) over her affair with another man.

3.  The Board found that (1) whilst the Applicant was subjected to verbal threats from the Creditor and the Husband, they were unable to harass her after she changed her phone number. Apart from looking for the Applicant at her parents’ house, they did not do anything further; (2) this conduct did not attain the degree of severity in pain or suffering to constitute torture; (3) there was no evidence of state acquiescence in the treatment of the Applicant by the Creditor and the Husband, as there were no public officials involved and the authorities were not even aware of what had happened as the Applicant had not reported any harassment; (4) the Applicant’s oral evidence regarding her affair (that the Husband did not know of it) was contradictory to what she had said in her claim form (that the Husband was aware and had threatened to kill her) and was unable to explain the discrepancies, and the Board found it not credible; (5) it would not be unduly harsh for the Applicant to relocate to major urban areas in Indonesia, and it would be extremely difficult for anyone to locate her in places like Jakarta or Surabaya; (6) on all the evidence, there was no risk of the proscribed harms if the Applicant were to return to Indonesia.

4.  In [10] to [14] of the Form CALL-1, the Judge gave detailed reasons for refusing the Leave Application. He noted that the Applicant did not identify any ground of challenge in her Form 86, her affirmation or at the hearing. The Judge further observed that the Board had found that even if there were risks of harm, they were localised, and it was not unreasonable or unsafe for the Applicant to relocate to another part of Indonesia. He found no error in the Board’s Decision.

5.  By a Notice of Appeal filed on 30 March 2026, the Applicant appealed against the Judge’s decision. The Applicant contended that :

“I am Disagree with The decision Maker authorities. decision Maker make my Decision Totally unfair They Make my decision same like torture claim Appeal Board/director of Immigration. Sir my life have so Threating in my Home country, if now I go Back my country Then my life no more. Please Grant my case as a human Rights. I do not think my case determined Fairly.”

6.  In the Applicant’s skeleton argument lodged on 19 May 2026, she complained for the first time that she was not provided with legal or language assistance. She alleged generally that the Board unlawfully fettered its discretion and acted in a procedurally unfair manner, that its decision was unreasonable or irrational in the public law sense and that it was a result of procedural errors. She also alleged that the authorities acted in a discriminatory manner towards non-refoulement claimants.

7.  The appeal was scheduled to be heard on 2 June 2026. The Applicant attended the hearing in person and was given the assistance of an Indonesian interpreter. She said that if she was returned to Indonesia, it would be risky for her child – if her husband found out then he could report this to the police as she had had an affair.

8.  The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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 Board’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst at [14(6)]).

9.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

10.  The Applicant’s complaint about the lack of legal and language assistance is a new point which was not raised in her application below. She is not entitled to raise it for the first time in the Court of Appeal. In any event, the Applicant was in fact legally assisted when completing her non-refoulement claim form on 18th June 2020, and at her screening interview on 26th June 2020, and she was provided with the assistance of an interpreter before the Judge and before us. Further, as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process, and the high standard of fairness required by law does not entail an interpretation service to be made available at any time as the Applicant desires. See Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11].

11.  In respect of the other grounds of appeal advanced in the Applicant’s skeleton argument, we note that those grounds were also not raised in the Form 86 or the affirmation filed in support of the Form 86. The Applicant has not given any reason why she should be allowed to raise these grounds for the first time at the appeal stage, nor can we find any good reason to allow her to do so, in particular as they are general assertions made without reference to the facts of her case and fail to identify with sufficient particulars any errors allegedly made by the Judge.

12.  As to the Applicant’s submission that her child would be at risk if the Applicant were returned to Indonesia due to the Applicant’s affair, this strictly speaking is irrelevant to the question of whether the Applicant should be refouled. In any event, the submission fails to address the point that the Board had already rejected the Applicant’s claim about the affair and the risk of harm arising therefrom.

13.  The matters set out in the Notice of Appeal, the Applicant’s skeleton argument and her oral submissions fail to engage the reasons given by the Judge. They do not constitute any viable grounds of appeal. We see no basis to interfere with the Judge’s decision.

14.  In the premises, the appeal is dismissed with no order as to costs.