APRILIYANTI TINA DEWI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 394/2025, [2026] HKCA 897

On appeal from [2025] HKCFI 2436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 394 OF 2025

(ON APPEAL FROM HCAL NO 2676 OF 2024)

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J U D G M E N T

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The Court:

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) given in the Order dated 2 June 2025 and the Form CALL-1 dated 6 June 2025,[1] whereby he allowed the applicant to withdraw her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 December 2024.

2.  The applicant is a national of Indonesia. She lodged her non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband and his family. The applicant’s non-refoulement claim was rejected by the Director, and her appeal against it was rejected by the Board on 20 December 2024.

3.  On 31 December 2024, the applicant commenced the proceedings below, seeking leave to apply for judicial review against the Board’s Decision. On 11 April 2025, she applied to withdraw her application for leave for judicial review by way of letter (“the Withdrawal Letter”). To ensure that the withdrawal was valid and properly made, the Judge by a letter of 20 May 2025 directed the applicant to file an affirmation or statement to confirm that (i) the withdrawal was made out of her own free will; (ii) it was safe for her to return to her home country and (iii) she understood that if her withdrawal application was approved, the Board’s decision would stand. The applicant was also advised that if no such affirmation or statement was filed, her application for leave to apply for judicial review would be determined without an oral hearing and might be dismissed for want of prosecution.

4.  On 29 May 2025, the applicant filed an affirmation stating that she wanted to continue with her judicial review application as she was misled into believing that it was safe to return to her home country (“the Affirmation”).

5.  Notwithstanding the Affirmation, the Judge proceeded on paper and allowed the applicant’s withdrawal application. He stated in Form CALL-1: -

2.  On 11 April 2025, the Applicant applied by letter to withdraw her leave application (the “withdrawal application”) asserting (i) that her withdrawal application is made out of her own free will; (ii) that it is now safe for her to return to her home country; (iii) that her understands that if her application to withdraw is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dismissing her appeal against the decision of the Director of Immigration remains in force; and (iv) that her wishes to return to her home country.

3.  In view of the assertions in [the Affirmation], the Court is satisfied that the Applicant made the withdrawal application out of her own free will; that her understands if her withdrawal application is allowed, her leave application may be withdrawn; that the Decision of the Board will be final and binding on him; and that her may be refouled to her home country. Accordingly, the Court allowed her withdrawal application and granted leave for her to withdraw her leave application.

6.  By a notice of appeal filed on 12 June 2025, the applicant sought to appeal the Judge’s decision to this court, on the ground that (sic) “I am disagree with the decision maker authorities. Last time I was apply for withdraw my application but after that under court direction I was Filed an Affirmation to continue my application for Leave to apply for Judicial Review.”

7.  The appeal was scheduled to be heard on 10 February 2026. The applicant has failed to lodge any skeleton argument in support of her appeal not less than 28 days before the hearing in accordance with the directions given by the Registrar of Civil Appeals on 16 December 2025. Accordingly, the applicant is deemed to have waived her right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper. The applicant was informed of the same by the court’s letter dated 16 January 2026.

8.  In our view, the Judge’s decision is, with respect, plainly wrong. In the Affirmation, instead of confirming her assertions in the Withdrawal Letter, the applicant unequivocally stated that she wanted to continue with her judicial review as she was misled into believing that it was safe to return to her home country. It simply did not support what the Judge said at [3] of the Form CALL-1. Absent any credible reasons, which the Judge did not articulate, it was wrong for him to conclude that she made the withdrawal application willingly with full knowledge and understanding of the consequences.

9.  Accordingly, we allow the appeal and make an order that the Judge’s order be set aside, and that the applicant’s application for leave to apply for judicial review be remitted to the Court of First Instance before another judge for consideration, with no order as to costs.