SUMARNI ANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 591/2026, [2026] HKCA 1322

On Appeal From [2026] HKCFI 2439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 591 OF 2026

(ON APPEAL FROM HCAL NO. 1480 OF 2022)

____________________

____________________

________________

JUDGMENT

________________

Hon Anthony Chan JA (giving the Judgment of the Court) :

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) Ken To (“Judge”) dated 27 May 2026 (“Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dated 30 November 2022 (“Board’s Decision”) whereby the Board dismissed her appeal against the decision of the Director of Immigration (“Director”) dated 5 October 2021 (“Director’s Decision”).

2.  The Applicant is a national of Indonesia.  She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she would be harmed or killed by her creditor over an unpaid debt.  The Applicant’s non-refoulement claim was rejected by the Director, and her appeal against it was rejected by the Board.  Details of the Applicant’s claim and the Board’s reasons for rejecting the Applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 27 May 2026, footnote 1.

3.  The Applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

4.  By a Notice of Appeal filed on 5 June 2026, the Applicant seeks to appeal the Judge’s decision to this Court.  For the grounds of appeal, the Applicant stated that :

“1. Procedural Impropriety> Failure to proper assessment my claim that the Authority of my country would not able to protect me from my enimies.

2. Procedural Impropriety> Failure to proper observe the country of origin information that my country still worse for me upon refoulement.

3.  Failure to consider under BOR2 and BOR3 risk.”

5.  The arguments set out in the Applicant’s skeleton submissions lodged on 16 June 2026 can be summarised as follows :

(a)  the Assessors’ view was that her claim was not established because her fear was “too low” but in fact the Applicant’s life is still in danger;

(b)  the Decision-makers failed to take into account relevant considerations or took into account irrelevant considerations;

(c)  the Board and the Director did not follow a high standard of fairness and did not inquire about her fear. The country of origin information clearly showed that no protection to the Applicant would be provided by the authority.  It was improper for the Judge to confirm the Board’s Decision;

(d)  the Applicant does not agree that she will be safe even if she relocates to another part of her country;

(e)  the Applicant’s claim falls within BOR3 risk;

(f)  the Applicant’s claim is not a private matter;

(g)  the Judge applied incorrect test and relied on credibility findings instead of making a holistic risk assessment;

(h)  the Board acted outside the scope of the Immigration Ordinance/USM[1] by misinterpreting statutory thresholds or applying an incorrect legal test;

(i)  the Applicant has given birth to a child out of wedlock in Hong Kong who has obtained legal status in Hong Kong; and

(j)  the Applicant also made a catalogue of allegations, namely, errors of law, breach of natural justice/procedural unfairness, irrationality/Wednesbury unreasonableness, error in fact-finding, failure to consider material evidence, misapplication of burden and standard of proof, failure to consider country information or changed circumstances and proportionality/compatibility with constitutional rights, but she did not identify any basis for these allegations.

6.  At the hearing of this appeal, the Applicant said that she wants to stay longer in Hong Kong because she cannot bring her child back to Indonesia. 

7.  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)].

8.  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 Director and the Board. 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: see Re Kartini [2019] HKCA 1022 at [13(1)].

9.  In respect of the Applicant’s case that she has given birth to a child in Hong Kong who now has legal status here, this does not detract from the fact that the Applicant does not have any right to enter or to remain in Hong Kong.  It is trite that a person who has no right to remain in Hong Kong cannot rely on the right to permanent residence in Hong Kong possessed by a family member: see BI v Director of Immigration [2016] 2 HKLRD 520 at [92(7)]; Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at [57], [65] and [69]; and Re Purisima Aida P [2022] HKCA 637 at [15].  Accordingly, the fact that the Applicant has to take care of her child would not relieve her from making out her non-refoulement claim.

10.  In this case, the Judge found no error of law or procedural unfairness or irrationality in the Board’s Decision.  It is incumbent upon the Applicant to point out the Judge’s errors with sufficient specificities.  In our view, the matters set out in the Notice of Appeal and Applicant’s written submissions do not properly identify any error on the part of the Judge.  They lack substance and do not constitute any viable grounds of appeal.  We see no basis to interfere with the Judge’s decision.

11.  For the above reasons, the Applicant’s appeal is dismissed with no order as to costs.

[1]  Unified Screening Mechanism.