ENY SETYOWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 92 /2025, [2025] HKCA 977

On appeal from [2025] HKCFI 691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 92 OF 2025

(ON APPEAL FROM HCAL NO 2321 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 18 February 2025, Deputy High Court Judge To refused to grant leave for the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 25 February 2025.

Background

2.  The applicant is a national of Indonesia.  She previously worked in Hong Kong as a foreign domestic helper.  She was arrested for theft on 12 May 2015 and her contract was terminated as a result.  She lodged her non-refoulement claim on the basis that, if she returns to Indonesia, she would be killed by her uncle as she refused to transfer her house to him. 

The decisions of the Director and the Board

3.  By a Notice of Decision dated 26 February 2018, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  The applicant filed an appeal against the Director’s decision.  She attended the hearing of her appeal before the Board on 28 March 2019.  The Board found that whilst the conflict over the house has been going on for over 20 years, the applicant had lived on reasonably good terms with her uncle for several years.  The Board further found that the applicant would be able to relocate safely in Indonesia.  Thus, the Board decided that the applicant was not entitled to non-refoulement protection under any of the applicable grounds and rejected the appeal on 2 August 2019.

The intended judicial review

5.  The applicant filed a Form 86 and an affirmation on 12 August 2019 to seek leave to apply for judicial review against the decision of the Board.  She stated that her dangerous situation was disregarded in the decision dated 2 August 2019.

The judge’s decision

6.  The hearing of the leave application was conducted before DHCJ To on 22 January 2025.  The applicant confirmed at the hearing that she has no complaint in respect of any error of law, procedural unfairness or irrationality in the Board’s decision[6]. The judge found that the Board has fairly and adequately determined the merits of the applicant’s appeal and that her claim is obviously unsustainable[7].  As there is no realistic prospect of success in the proposed judicial review, the judge dismissed the leave application on 18 February 2025.

Grounds of appeal

7.  In the Notice of Appeal filed on 25 February 2025, the applicant stated that she disagreed with the decision makers and that the Board’s decision was unreasonable or irrational in the public law sense or a result of procedural errors or unfairness.

Non-compliance with order for lodging of skeleton argument

8.  Directions were given by the Registrar of Civil Appeals on 5 September 2025 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper.  The Registrar has also made it clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

9.  The appeal was scheduled to be heard on 28 October 2025.  The applicant failed to lodge a skeleton argument by the prescribed deadline.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  The court informed the applicant by letter dated 8 October 2025 that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Analysis and disposition

10.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

12.  The applicant’s grounds of appeal are just bare assertions without any basis.  In particular, she had confirmed at the hearing before the judge that she had no complaint about any error of law, procedural unfairness or irrationality in the Board’s decision.  She also failed to demonstrate that the judge had made errors of law, failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

13.  The appeal has no merits and we dismiss it accordingly.