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CACV 405/2022
[2025] HKCA 883
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 405 OF 2022
(ON APPEAL FROM HCAL NO. 711 OF 2019)
________________________
BETWEEN
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ASTUTIK PUDJI |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD
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NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
________________________
| Before: |
Hon Barma JA and S T Poon J in Court |
| Date of Judgment: |
28 November 2025 |
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J U D G M E N T
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Hon S T Poon J (giving the Judgment of the Court):
1. This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 5 October 2022, by which the Deputy Judge refused to extend time for the applicant to apply for leave to apply for judicial review and dismissed her application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 3074).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 27 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 18 April 2016 and 7 March 2017 rejecting the applicant’s non-refoulement claim.
BACKGROUND
3. The applicant is a national of Indonesia. She entered Hong Kong on 16 August 2014 as a foreign domestic helper. Her employment contract was however prematurely terminated on 22 August 2014. She did not depart within the limitation of stay and had overstayed since 6 September 2014. On 23 October 2014, she surrendered to the Immigration Department. On 20 November 2014, she raised a non-refoulement claim on behalf of herself and her daughter[1] on the basis that if she returned to Indonesia, she would be harmed or even killed by her husband and the villagers from his village for conceiving her daughter with another man. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] to [6] of the Leave Decision.
4. By a Notice of Decision dated 18 April 2016 and a Notice of Further Decision dated 7 March 2017 (“the Director’s Decisions”), the Director rejected the applicant’s non-refoulement claim. The decisions covered all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. Taking into account all relevant circumstances, the Director considered that the applicant’s non-refoulement claim was not substantiated.
5. The applicant (as well as her daughter) then appealed against the Director’s Decisions to the Board. The applicant attended the hearing on 20 March 2017, and she (as well as her daughter) were legally represented. Having assessed and considered the totality of the evidence, the Board accepted that as a single mother, the applicant and her daughter may face discrimination and possible harassment if refouled. However, the Board also found that these possible scenarios or risks did not amount to any of the proscribed harm in law, before concluding that internal relocation options were available to the applicant (and her daughter) to mitigate the risks of harm, if any. The Board accordingly dismissed the applicant’s appeal.
THE LEAVE DECISION
6. On 13 March 2019, the applicant (alone) applied for leave to apply for judicial review against the Board’s Decision, which was out of time. In her Form 86 and her supporting affirmation, the applicant did not set out any ground of review, nor reasons for the delay in lodging her application. As the applicant did not request an oral hearing, the Deputy Judge dealt with her application on the papers.
7. By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [16] to [23] of the Leave Decision:
“16. As mentioned in paragraph 1 above, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. Her delay is about 2 weeks and she has not disclosed any reason for her delay. Nevertheless, I shall first consider the prospect of the intended judicial review.
17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
19. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …Assessment of evidence and COI materials and 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.’
20. The applicant was legally represented before the Board. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The applicant has raised no valid ground to challenge the Board’s Decision.
21. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
22. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
23. I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
THE APPEAL
8. On 10 October 2022, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision. In her Notice of Appeal, she merely stated that she wished to challenge the Leave Decision, without setting out any grounds.
9. In breach of the directions made by the Registrar of Civil Appeals on 15 November 2022, the applicant failed to lodge skeleton submissions with the court 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.
10. The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1. The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process. The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants. The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing. In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions. Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.
11. The hearing date on 1 February 2023 was therefore vacated and the applicant was debarred from lodging any written submissions.
12. On 1 February 2023, the Director of Legal Aid filed a Memorandum of Notification of an Application for Legal Aid, recording that the applicant has made an application (on behalf of herself as well as her daughter) for legal aid to prosecute an appeal against the Leave Decision. The Registrar of Civil Appeals, noting that the present appeal does not concern the applicant’s daughter notwithstanding that an application for legal aid was also made on her behalf, directed on 10 February 2023 that the matter be stayed for 42 days until 14 March 2023 pursuant to section 15 of the Legal Aid Ordinance (Cap. 91), and that upon expiry of the stay, the appeal will be dealt with on paper.
13. By a Memorandum filed on 15 March 2023, the court was informed by the Director of Legal Aid that the applicant’s application for legal aid was unsuccessful.
14. In the circumstances, we proceed to deal with the appeal on paper on the basis of the materials filed with the court.
DISCUSSION
15. The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
16. 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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.
17. At the outset, the applicant has entirely failed in her Notice of Appeal to identify with specific particulars as to how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, she has failed to advance any proper grounds of appeal. On this basis alone, her appeal must fail.
18. The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board. We see no basis to interfere with the Leave Decision.
19. For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.
| (Aarif Barma) |
(S T Poon) |
| Justice of Appeal |
Judge of the Court of First Instance |
The Applicant acting in person.
[1] Notwithstanding that the daughter’s claim was rejected by the Director whose decision was ultimately affirmed by the Board, no application for leave to apply for judicial review against the Board’s Decision in respect of the daughter was filed.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the 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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