PURNIAWATI v TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 138/2025, [2026] HKCA 1056

On Appeal From [2025] HKCFI 2605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 138 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 2147 OF 2019)

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BETWEEN

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JUDGMENT

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

1.By a Summons filed on 24 July 2025, the Applicant seeks to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 15 July 2025 (“EOT Decision”)[1] refusing to extend time for the Applicant to appeal against his decision dated 6 February 2025 (“Leave Judgment”)[2] by which the Applicant’s application for leave to apply for judicial review was refused. The present application is treated as a renewed application for an extension of time to appeal against the Leave Judgment.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 25 June 2019 (“Board’s Decision”) dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 21 January 2019 (“Director’s Decision”) by which the Applicant’s non-refoulement claim was rejected.

Background

3.The applicant is a national of Indonesia.  She last entered Hong Kong as a visitor on 16 April 2015, and she overstayed after 24 April 2015.  On 30 April 2018, she was convicted of breach of condition of stay by overstaying and sentenced to 6 weeks’ imprisonment.  On 5 July 2018, a removal order was issued against her.  On 19 July 2018, she lodged a non-refoulement claim, which was assessed on all applicable grounds, namely, torture risk[3], persecution risk[4], BOR 3 risk[5] and BOR 2 risk[6].

4.The Applicant’s claim was based on the fear of being killed or harmed by her ex-husband and an unknown creditor[7].  The details of the Applicant’s claim had been summarised by the Judge at [5] of the Leave Judgment.

5.On 21 January 2019, the Director rejected the Applicant’s claim because (i) there was no substantial ground to believe the claimed future risk of harm by her ex-husband and his creditor on her return to Indonesia; (ii) state protection will be available to her; and (iii) internal relocation is viable. 

6.On 25 June 2019, the Board dismissed the Applicant’s appeal against the Director’s Decision for the reasons that (i) her fear of ill-treatment was based on her private dispute with her ex-husband and his creditor, which did not fall within the definition of persecution; (ii) the Board did not accept there is a torture risk from her ex-husband or the unknown creditor if the Applicant returns to Indonesia; (iii) the Applicant did not file evidence in support of her claim under BOR 2 risk; and (iv) the Applicant had never sustained any serious pain or suffering caused by her ex-husband or the unknown creditor whilst in Indonesia.

The decisions below

7.The Applicant filed a Form 86 on 26 July 2019 seeking leave to apply for judicial review of the Board’s Decision.  Although a copy of the Board’s Decision was annexed, the Applicant in her supporting affirmation stated the following :

“I would like to reject and review the decision made by Immigration Department on my case. They disregard my dangerous situation.”

8.The Judge refused the Leave Application on 6 February 2025 for reasons stated in [17]-[18] of the Leave Judgment: (i) the Applicant had failed to raise any valid ground to challenge the Board’s Decision; (ii) the Applicant had failed to show any realistic prospect of success in her proposed judicial review; and (iii) there was no reason for the Judge to interfere with the Board’s Decision.

9.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the Applicant had 14 days to lodge an appeal against the Leave Judgment, which expired on 20 February 2025.

10.The Applicant took out a Summons in the court below on 27 March 2025 seeking an extension of time to appeal.  In the Summons and her supporting affirmation, the Applicant stated that :

“I would like to reject and review the decision made by the court. They disregard my dangerous situation. I don’t realize I should apply an appeal within 14 days. Also, I didn’t receive the judgment letter until now. I just check online I realize that issue.”

11.The Judge decided to determine the extension of time application on paper without an oral hearing.  Having considered (i) the length of delay; (ii) the reasons for the delay; (iii) the prospects of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted, the Judge dismissed the Applicant’s application to appeal out of time on 15 July 2025.  The Judge (a) did not accept the Applicant’s claim that she had not received a copy of the Leave Judgment as a valid reason for the delay; and (b) held that there was no valid reason to challenge the Leave Judgment.

The present application

12.In her supporting affirmation, the Applicant stated the following that :

“I would like to reject the decision made by the Judge KW Lung on 15 July 2025. It is unfair to me that he dismissed my application for the extension of time. When a person does not understand the system, the court should exercise clemency to his/her (the applicant).”

13.The Applicant lodged a 2-page written submissions on 7 August 2025, in which she stated that she filed her non-refoulement claim because she was worried that she and her son would be killed by the loan shark upon their return to Indonesia.  The Applicant also advanced three grounds of appeal which can be summarised as follows :

(1)  She believes that she should be considered at least under the BOR 2 risk, as there is a genuine possibility that she would face life threat from the loan shark, who is still looking for her.

(2)  In respect of the possibility of internal relocation, Indonesia is a communal society and the loan shark can track her very easily.

(3)  She has a very young daughter who was born out of wedlock in Hong Kong, and she worries that her daughter would be subject to discrimination and the risk of child trafficking if they return to Indonesia.

Discussion

14.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  Thus, the present application will be determined on the basis of the documents filed.

15.We note that a copy of the Leave Judgment was sent to the Applicant at her last known address on the day it was handed down, ie, 6 February 2025[8]. Despite the Applicant’s claim that she did not receive it, it was not returned undelivered by the Post Office.  

16.We do not consider the Applicant’s claim of ignorance of the appeal period by reason of her lack of understanding of the judicial system as a sound reason for the delay.

17.In the premises, the Applicant has offered no reasonable explanation for the delay of over one month before she applied for an extension of time to appeal.  It was a substantial delay and the Summons can be dismissed on this basis alone.

18.Further, the Summons should be dismissed as we do not consider there is any merit in the intended appeal.

19.First, as mentioned in [7] above, the Applicant has not reduced to any particulars, in the Form 86 or otherwise, regarding the basis upon which it is alleged that the Board acted unlawfully or procedurally unfairly, or how the Board’s Decision could be characterized as Wednesbury unreasonable.  In the absence of such particulars, the application for leave for judicial review was bound to fail and was correctly dismissed by the Judge.

20.Second, it is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the judge: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The matters raised in the Applicant’s affirmation in support of the Summons and her written submissions are bare assertions unsupported by particulars.  In any case, general assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

21.In all, the Applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

22.The Applicant has also failed to establish any arguable error of law or material misdirection on the part of the Judge, or other basis demonstrating that the refusal of leave was wrong.  

23.For the above reasons, the intended appeal has no merits and it would be futile to extend time and grant leave to appeal.  The Summons is accordingly dismissed with no order as to costs.

The applicant acting in person

[1]  [2025] HKCFI 2605.

[2]  [2025] HKCFI 277.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4]  This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[5]  This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6]  This refers to the risk of violation of the right to life under article 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7]  From whom the Applicant’s ex-husband had borrowed.

[8]  In [3] and [4] of the EOT Decision, the Judge wrongly referred to the Leave Judgment as dated 6 January 2025 instead of 6 February2025.