YENI ASTUTI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 444/2024, [2026] HKCA 556

On Appeal From [2024] HKCFI 2562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 444 OF 2024

(ON APPEAL FROM HCAL NO. 1710 OF 2021)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the Applicants’ appeal against the order of Deputy High Court Judge K.W. Lung (“Judge”)  dated 14 October 2024 (“Order”). The Order was made in respect of the Applicants’ application for leave to apply for judicial review (“Leave Application”)  in HCAL 1710/2021 against the decision of the Torture Claims Appeal Board (“Board”)  dated 12 October 2021 (“Board’s Decision”). By that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 24 February 2021 rejecting the non-refoulement claims of the Applicants. The claim made by the 1^st Applicant was a subsequent claim[1].

2.  This appeal was scheduled to be heard on 26 March 2026. The Applicants have failed to lodge any skeleton argument in support of their appeal in accordance with the directions given by the Registrar of Civil Appeals on 11 February 2026.  Accordingly, the Applicants are deemed to have waived their right to have an oral hearing of the appeal and elected to have the appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the Applicants’ appeal on paper without an oral hearing.

3.  Under the Order, (a)  no order was made against the 1^st Applicant and (b)  the Leave Application of the 2^nd Applicant was refused.  The Judge made no determination against the Leave Application of the 1^st Applicant because he took the view that the 1^st Applicant’s non-refoulement claim had been finally determined by reason of the determination of her previous non-refoulement claim made in 2014[2]. 

4.  With respect, this is wrong.  The Judge had overlooked the fact that the 1^st Applicant had made a subsequent non-refoulement claim, which was rejected by the Director on 24 February 2021 and her appeal to the Board was dismissed on 12 October 2021 (in conjunction with that of the 2^nd Applicant).  It is quite clear from the Board’s Decision, [7] that the 1^st Applicant had made a subsequent claim.

5.  We believe that the 1^st Applicant’s Leave Application should be remitted back to the court below before a different judge for determination. 

6.  The 2^nd Applicant is the daughter of the 1^st Applicant.  She was born in June 2020.  Her non-refoulement claim is based on the facts of the 1^st Applicant’s claim.  In the circumstances, we believe that justice is better served by remitting her Leave Application to the court below together with that of the 1^st Applicant. 

7.  Accordingly, we set aside the Order.  The Leave Application of both Applicants is remitted to the Court of First Instance before a different judge for determination.  We make no order as to the costs of this appeal.