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CACV 61/2025, [2025] HKCA 363
On appeal from [2025] HKCFI 478
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 61 OF 2025
(ON APPEAL FROM HCAL NO 2415 OF 2019)
________________________
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BETWEEN
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Yosefina Dajani |
Applicant |
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and |
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Torture Claims Appeal Board /
Non‑refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
________________________
| Before: |
Hon Kwan Ag CJHC and Cheung JA in Court |
| Date of Judgment: |
17 April 2025 |
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J U D G M E N T
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Hon Kwan Ag CJHC (giving the Judgment of the Court):
Background
1. On 4 February 2025, Deputy High Court Judge Levy refused to grant leave for the applicant to apply for judicial review against 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 decision on 10 February 2025.
2. The applicant is a national of Indonesia. She last arrived in Hong Kong on 30 May 2007 to work as a domestic helper. Her contract was terminated prematurely. She subsequently overstayed and was arrested by the police on 3 July 2008. She lodged a torture claim on 5 August 2008 which was rejected by the Director of Immigration (“the Director”) on 24 June 2011. Her petition to the Chief Executive also failed on 27 July 2011. She lodged a non-refoulement claim on 17 August 2013. Her claim was made on the basis that, if refouled, she would be harmed or killed by (1) the wife of Sutirta who thought that the applicant had an affair with her husband, and (2) the four members of the Democratic Party, who were afraid that the applicant would disclose the secret of the party and how they obtained their power.
3. By a Notice of Decision dated 19 October 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than torture risk[2] (as her torture claim has already been refused) including BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
4. The applicant filed an appeal against the Director’s decision with the Board. She attended the hearing before the Board on 8 May 2019. The appeal was refused by the Board on 15 July 2019.
The intended judicial review
5. The applicant filed a Form 86 and an affirmation on 20 August 2019 to seek leave to apply for judicial review against the decision of the Board. She only stated in her affirmation that she was not satisfied with the Board’s decision and asked the court to review her case, without putting forward any specific grounds against the Board’s decision.
The judge’s decision
6. The applicant attended the hearing before DHCJ Levy on 24 December 2024. At the hearing, she submitted that she is still afraid to go home and that her story is true. The judge held that it was perfectly open to the Board to come to the conclusion that the applicant’s fear was speculative. The judge further found that the applicant failed to discharge her burden of proving the asserted fears and risks. Hence, the judge was not satisfied that the applicant has a realistic prospect of success and dismissed her leave application on 4 February 2025.
Grounds of appeal
7. In her Notice of Appeal, the applicant stated that she disagreed with the decisions of the Director and the Board, as they totally relied on some web news which was not officially recognized.
8. The Court of Appeal subsequently received through the Immigration Department by fax, a letter dated 6 March 2025 issued by the applicant, stating that she needs to cancel her case in the High Court and that she wishes to be deported to Indonesia as soon as possible.
Legal principles
9. 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.
Analysis and disposition
10. As the applicant wants to cancel her court case and be deported to her home country, we think it is appropriate to dismiss her appeal as the practice of this court is to dismiss the application instead of merely granting leave to withdraw (Re Rini Artini [2020] HKCA 709 at §9).
11. In any event, we also consider that the appeal is devoid of merit. The applicant’s ground of appeal is just bare assertion without any particulars or evidence in support. She failed to demonstrate 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. For the above reasons, the appeal is dismissed accordingly.
(Susan Kwan)
Acting Chief Judge
of the High Court
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(Peter Cheung)
Justice of Appeal
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The Applicant (Appellant), acting in person
[1] [2025] HKCFI 478
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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