Swari Nila Sahabti and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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CACV 28/2026, [2026] HKCA 1224 On Appeal From [2025] HKCFI 6427 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 28 OF 2026 (ON APPEAL FROM HCAL NO 2390 OF 2024) ________________________ BETWEEN ________________________
________________________ J U D G M E N T ________________________ Hon Chow JA (giving the Judgment of the Court): 1.This is the 1st and 2nd Applicants’ appeal against the order of Deputy High Court K W Lung (“the Judge”) dated 30 December 2025 (“the Order”) in HCAL 2390 of 2024 (“the 2024 Application”), whereby the Judge refused 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 21 November 2024 (“the Board’s Decision”), and struck out the Applicants’ duplicate application in HCAL 1662 of 2025 (“the 2025 Application”). In the Board’s decision, the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 9 October 2023. 2.The 1st and 2nd Applicants are mother and son, and are nationals of Indonesia. The 1st Applicant gave birth to the 2nd Applicant out of wedlock in Hong Kong on 21 March 2023. The father of the 2nd Applicant is a national of Bangladesh and also a non-refoulement claimant. The Applicants allege that, if refouled to Indonesia, they will be harmed or killed by the 1st Applicant’s family and the local community for giving birth to the 2nd Applicant out of wedlock[1]. The Applicants’ background, the basis of their claims, the findings of the Board and its reasons for dismissing their appeals against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in the Judge’s decision (see §§13, 14, 18 and 19 of the CALL-1 Form). We do not propose to repeat them here. 3.The Judge’s reasons for striking out the 2025 Application and dismissing the 2024 Application are set out at §§5-10 and 23-29 of the CALL-1 Form respectively. In gist, the Judge found that the 2025 Application is a clear case of duplication of proceedings, and the Applicants failed to raise any or any valid grounds to challenge the Board’s Decision or show that their intended judicial review had any realistic prospect of success. THIS APPEAL 4.In their Notice of Appeal filed on 13 January 2026, the Applicants state the following:
5.On 8 June 2026, the Applicants lodged their written submissions in support of the present appeal. In those submissions, the Applicants essentially repeat their claimed fear of returning or going to Indonesia, and make some general allegations of jurisdictional error, error of law, breach of natural justice, irrationality, error of fact, misapplication of the burden and standard of proof, failure to consider country of origin information, and disproportionality/incompatibility with constitutional rights. 6.At the hearing of the appeal on 9 July 2026, the 1st Applicant had nothing to say on her own behalf or on behalf of the 2nd Applicant. DISCUSSION The 1st Applicant 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.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 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. 9.The matters raised in the Notice of Appeal and submissions are all general assertions without particulars, and do not constitute valid grounds of appeal against the Order. 10.The 1st Applicant’s appeal has no merit, and is dismissed. The 2nd Applicant 11.The 2nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment. 12.In the present case, both the 1st and 2nd Applicants were legally represented before the Board, and the father of the 2nd Applicant gave oral evidence on behalf of the 2nd Applicant at the Board hearing (see §§26 and 27 of the Board’s Decision). Although the Board did not deal with the 2nd Applicant’s case under a separate section, we are satisfied that, in substance, the Board did consider the 2nd Applicant’s case separately. 13.The Board considered the evidence of the 1st Applicant, and found that her evidence was problematic and contained numerous inconsistencies, and she had failed to provide any satisfactory explanations for the inconsistencies. The Board found that the 1st Applicant’s account of events was not truthful, and rejected her claim (see §§84-89 of the Board’s Decision). Once the 1st Applicant’s claim was rejected, the 2nd Applicant’s claim, insofar as it was premised upon the same factual basis underlying the 1st Applicant’s claim, had no factual support. In any event, the Board found that state protection and reasonable internal relocation options would be available to both Applicants in Indonesia, and they would be entitled to basic services like other Indonesians without any real chance of discrimination (see §§89 and 165-167 of the Board’s Decision). 14.The Board also considered the 2nd Applicant’s claim if he was to go to Bangladesh with her father. The Board, after considering the evidence of the 2nd Applicant’s father, rejected his claim for non-refoulement protection, which was advanced on the basis that he would face risks of harm from his paternal uncle over a land dispute or from members of the Awami League due to his involvement in another political party in Bangladesh (see §§101, 147 and 155 of the Board’s Decision). The Board held that the 2nd Applicant’s claim had no factual support from the father’s claim either (see §157 of the Board’s Decision). The Board also found that reasonable internal relocation was likewise a viable option for the 2nd Applicant in Bangladesh (see §168 of the Board’s Decision) 15.In all, the Board was not satisfied that the 2nd Applicant would face any real risk of harm or ill-treatment from the 1st Applicant’s family if refouled to Indonesia, or from his father’s paternal uncle or members of the Awami League if refouled to Bangladesh. We do not see that there was any relevant minor-specific matter(s) relating to the 2nd Applicant’s claim which the Board ought to have considered, but failed to do so. The fact that the Board considered the non-refoulement claim of the 2nd Applicant’s father in the context of an assessment of the 2nd Applicant’s non-refoulement claim is clear evidence that the Board did not consider the 1st and 2nd Applicants’ non-refoulment claims as a composite one, but considered the 2nd Applicant’s non-refoulement claim separately from that of the 1st Applicant. 16.The Judge did not err in principle or approach. There is no valid ground to intervene in the Judge’s decision to reject the 2nd Applicant’s application for leave to apply for judicial review. 17.The 2nd Applicant’s intended judicial review is not reasonably arguable. So is his appeal against the Judge’s decision. Accordingly, we dismiss the 2nd Applicant’s appeal. 18.For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the Rules of the High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2nd Applicant’s appeal a nullity.
The 1st and 2nd Applicants, appearing in person [1] See §§2 and 3 of the Board’s Decision. |
Cases cited in this judgment