NUR CHOLIMAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 245 /2025, [2025] HKCA 976

On appeal from [2025] HKCFI 1389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2025

(ON APPEAL FROM HCAL NO 3856 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 16 April 2025, Deputy High Court Judge Levy 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 decision on 29 April 2025.

Background

2.  The applicant is a national of Indonesia.  She previously worked in Hong Kong as a foreign domestic helper.  After her employment contract was prematurely terminated, she did not depart and subsequently overstayed.  She surrendered to the Immigration Department on 31 October 2016.  She lodged her non-refoulement claim on 12 April 2017.  Her claim was made on the basis that, if she returns to Indonesia, she would be killed by her uncle as she did not give him money.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 18 April 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 2 December 2019.  In light of the significant inconsistencies in the applicant’s evidence, the Board did not accept the applicant’s story and was not satisfied that her uncle would seriously harm or kill her.  The Board considered there is not a real risk that the applicant would face any of the proscribed forms of harm should she return to Indonesia.  The Board further found it would be reasonable for the applicant to relocate to another part of Indonesia such as Jakarta where she had lived and worked for several years.  Thus, the Board decided that the applicant has not made out her non-refoulement claims on any of the applicable grounds and rejected the appeal on 12 December 2019.

The intended judicial review

5.  The applicant filed a Form 86 and an affirmation on 24 December 2019 to seek leave to apply for judicial review against the decision of the Board[6].  She reiterated her problem with her uncle in her supporting affirmation without putting forward any specific ground for her intended judicial review.

The judge’s decision

6.  The leave application was dealt with by DHCJ Levy on paper as the applicant has not requested an oral hearing.  The judge held that the Board correctly applied the law and observed a very high standard of fairness.  The judge also found that the applicant has not shown any errors of law, procedural unfairness or irrationality in the Board’s decision.  As there is no realistic prospect of success in the proposed judicial review, the judge dismissed the leave application on 16 April 2025.

Grounds of appeal

7.  In the Notice of Appeal filed on 29 April 2025, the applicant stated that the court did not find any error but she can show many errors of the adjudicator.

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.  Despite the applicant’s assertion that she found many errors of the adjudicator, she did not identify any of the errors in her previous leave application or in the present appeal.  She 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.  As the appeal clearly has no merit, we dismiss it accordingly.