Nanik Sulastri Kuwat and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 1133/2025, [2026] HKCA 1511

On Appeal From [2025] HKCFI 4993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1133 OF 2025

(ON APPEAL FROM HCAL NO 1454 OF 2025)

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BETWEEN

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J U D G M E N T

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Hon Mimmie Chan J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 19 November 2025[1] (“the Leave Decision”) refusing to grant leave for the 2^nd applicant (the 1^st applicant’s daughter, a minor) to apply for judicial review.  It is pertinent to note that the Leave Decision concerned only the 2^nd applicant’s application for leave to apply for judicial review, as the 1^st applicant’s own leave application has previously been dismissed in a separate set of proceedings in HCAL 1365 of 2019[2] (Leave Decision, [2]-[3]).

2.In the present case, the 2^nd applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 23 May 2025 (“the Board’s Decision”) dismissing the 2^nd applicant’s appeal against the decision of the Director of Immigration dated 17 June 2024 rejecting the 2^nd applicant’s non-refoulement claim.

Background

3.The 1^st applicant is a national of Indonesia.  She is the mother of the 2^nd applicant, who was born in Hong Kong on 26 April 2023.  The 2^nd applicant’s father (“the Father”), who is married to the 1^st applicant, is a national of Pakistan.  The 1^st applicant and the Father were both non-refoulement claimants whose claims have been dismissed by the Board and whose subsequent applications for leave to apply for judicial review of their respective Board decisions have been dismissed by the Court. 

4.The 2^nd applicant’s non-refoulement claim (as well as her leave application in the Court below and the present appeal) was lodged by the 1^st applicant on her behalf. 

5.The background to this case, the 2^nd applicant’s basis to her claim and the reasons given by the Board in its Decision have been set out therein and summarised by the Judge in the Leave Decision at [6]-[13], which will not be repeated.

6.After considering the documents filed as well as the submissions made by the 1^st applicant (on behalf of the 2^nd applicant) at the hearing of the leave application, the Judge dismissed the application for the reasons stated in the Leave Decision. 

Appeal to this court

7.By a Notice of Appeal dated 2 December 2025, the 1^st applicant (on behalf of the 2^nd applicant) stated: 

“The Judgement is not reasonable.  I plead to the court to reconsider my application.  I want to appeal against the decision.”

8.In the 1^st applicant’s written submissions dated 23 July 2026 (lodged on behalf of the 2^nd applicant), she complained without elaboration or particulars inter alia that (i) as an unrepresented litigant, she did not understand how the 2^nd applicant’s case was decided; (ii) she and/or the 2^nd applicant were never provided with “proper legal and language assistance”; (iii) the Board breached procedural fairness; (iv) the Leave and/or the Board Decision(s) were “unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness”.

9.We heard the appeal on 18 August 2026, at which the 1^st applicant appeared in person.  At the hearing, the 1^st applicant had nothing further to add to the matters already set out in the documents filed with the Court.  

Discussion

10.As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

11.Notwithstanding that the 2^nd applicant’s claim rides upon the factual bases of the 1^st applicant’s and the Father’s non-refoulement claims, it is necessary for this court to consider the position of the 2^nd applicant separately, as she is a minor and had not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971. 

12.We note that despite previous directions made by the Registrar of Civil Appeals, no steps have been taken to comply with the requirements under Order 80, rule 2.  Accordingly, directions were thereafter given by the Registrar for the appeal to be referred to this Court for determination.

13.The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(a)  Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;  

(b)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations; 

(c)  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child. 

14.The position is therefore that while the reality remains in the majority of cases involving minors that the factual basis of the minor’s claim would be dependent on or even entirely rest upon that of the parent’s, regard must be had to the personal circumstances of the minor (and any risks of harm posed to the minor) by the decision-maker.  In this case, like the majority of similar cases involving minor applicants, the basis of the 2^nd applicant’s perceived fear or risk of harm upon refoulement rested upon the primary case of her mother’s and the Father’s.

15.The 2^nd applicant’s case, as presented to the Board by the 1^st applicant and the Father (who both appeared before the Board at the hearing), was (i) in respect of the 1^st applicant and her fears of returning to Indonesia with the 2^nd applicant, that her ex-fiancé might force her to marry him; (ii) in respect of the Father and his fears of returning to Pakistan with the 2^nd applicant, that by reason of a fight which occurred in 2005 between himself (and others) and members of the Pakistan People’s Party (“the PPP”) and him having seriously injured the leg of a PPP member, he fears revenge in the form of physical harm by members of the PPP.

16.It was the consensus between the 1^st applicant and the Father that the family would, if the 2^nd applicant’s non-refoulement claim was unsuccessful, remain together whether they were to reside in or return to Indonesia or Pakistan (Board’s Decision. [59], [61]).

17.In the application below, the Judge noted that the Board had in its Decision considered the 2^nd applicant’s case separately while also taking into account the situation of her parents, and that the Board had thoroughly considered the 2^nd applicant’s circumstances should she return to Indonesia or Pakistan with her parents (Leave Decision, [16]-[18]). 

18.Having considered and subjected the Board’s Decision to anxious scrutiny, we agree with the Judge’s observations and we are also of the view that the Board has discharged its duties in respect of its determination of the 2^nd applicant’s claim/appeal. 

19.In the present case, the Board rejected the alleged fear of risk of harm as advanced by the 1^st applicant and the Father.  The 1^st applicant’s fear of harm in respect of her ex-fiancé was not made out and did not reach the required minimum threshold of severity due to, inter alia, the fact that she has never suffered any physical harm at the hands of her ex-fiancé and that the latter has done nothing more than asking her family for her whereabouts.  As regards the Father’s fear of harm from the PPP, his evidence was inconsistent and contradictory, which led the Board to find that he never in fact injured any member of the PPP, nor has he ever attracted the adverse interest of the PPP. 

20.Separately and in respect of the situation of the 2^nd applicant, the Board found as a matter of fact that the 1^st applicant’s ex-fiancé was unaware of the 2^nd applicant’s birth or existence, nor has the 2^nd applicant ever faced any threat of harm from him (Board’s Decision, [75]).  Further, the Board also found, by reason of its rejection of the basis of the Father’s alleged fear of harm, that there was no real chance of the 2^nd applicant facing any harm should she return to Pakistan. 

21.Moreover, the Board found that (i) should the 2^nd applicant return to Indonesia, she will benefit from the 1^st applicant’s family ties and support at her home town (Board’s Decision, [56]) as well as basic healthcare and education services (Board’s Decision, [82]); (ii) should the 2^nd applicant return to Pakistan, the 1^st applicant will reside with her and it was not perceivable that she would become the child of a single parent (Board’s Decision, [61]); (iii) the 2^nd applicant would also have access to basic welfare benefits such as healthcare and education in Pakistan (Board’s Decision, [114]). 

22.The Board’s determination of the 2^nd applicant’s claim for the reasons stated in its Decision therefore cannot be faulted.  We also do not consider there to be any indication that the merits of the 2^nd applicant’s claim (or any underlying matter that may support minor-specific non-refoulement grounds) had not been adequately explored before the Judge due to the lack of legal representation. 

23.The 2^nd applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regards to her appeal/claim, or how such Decision could be said to be Wednesbury unreasonable.

24.In the premises, the 2^nd applicant has advanced no viable grounds of appeal against the Judge’s decision, and her appeal is accordingly dismissed.

The 1^st applicant appearing in person

The 2^nd applicant (the 1^st applicant’s daughter, minor), unrepresented, did not appear

[1]  [2025] HKCFI 4993

[2] [2024] HKCFI 2259; the leave applications of the 2^nd and 3^rd applicants (the other two daughters of the 1^st applicant) in this action were also dismissed.