RE ISTAMAH

CACV 107/2021

[2021] HKCA 1459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 107 OF 2021

(ON APPEAL FROM HCAL NO. 222 OF 2019)

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D E C I S I O N

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Hon B Chu J (giving the Decision of the Court) :

1)  Leave to appeal to Court of Final Appeal

1.1     On 6 August 2021, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge C P Pang of 4 March 2021 in which he refused to grant leave to the applicant to apply for judicial review.

1.2     The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3     The applicant now applies, by a notice of motion dated 23 August 2021 (“Notice of Motion”), for leave to appeal against our judgment to the Court of Final Appeal.

1.4     In her Notice of Motion, the applicant stated that “there is some error in law in my decision.  Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim.  Acual (sic) life occur different situation then what is mentioned in COL Information.  The Officer and cours (sic) prefers to ignore the overwheming (sic) of the evidence of this violence towards minorities searching for unrealistic silver lining.  The Decision is betrary (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable”.

1.5     The applicant further lodged written submissions on 6 September 2021.  She referred to various authorities but did not state how those authorities applied to her case.  She submitted that the Adjudicator acted in a procedurally unfair manner in dealing with her application and without properly assessing her credibility.  She submitted our judgment was unreasonable.  She had referred to section 37ZT for late filing of notice of appeal which is not applicable for her present application.  

2)  Legal principles

2.     Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1     The matters stated by the applicant in her Notice of Motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from what is stated by the applicant in the Notice of Motion. 

3.2     We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.     For these reasons, the Notice of Motion dated 23 August 2021 is dismissed.

CACV 107/2021

[2021] HKCA 1158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 107 OF 2021

(ON APPEAL FROM HCAL NO. 222 OF 2019)

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court) :

1)  The appeal

1.   This is an appeal by the applicant against the decision of Deputy High Court Judge C P Pang (“Judge”) of 4 March 2021 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1   The applicant is a national of Indonesia. She came to Hong Kong various times in the past either as a visitor or as a foreign domestic helper.  She last entered Hong Kong in May 2013.  Her employment contract prematurely terminated and she overstayed.  She made a non-refoulement claim in November 2016.

2.2   The basis of the applicant’s claim is that she would be harmed or killed by her ex-husband if she returned.

2.3   The background facts have been summarized in the decision of the Judge at [2]-[3].

3)  The Director’s Decision

3.   The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 10 November 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)   The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 21 November 2017.  After a hearing held on 21 November 2018, the Board dismissed the applicant’s appeal on 21 January 2019 (‘the Board’s Decision’).

4.2   The Board found that even though the applicant’s account of primary facts were credible, the applicant had no face to face contact with the ex-husband since 2011 and neither herself nor her family have been threatened or harmed since the divorce.  There was no real risk of harm if the applicant was to return to Indonesia.  Internal relocation was possible.

5)   Decision of the Judge

5.1   The applicant filed her Form 86 but no grounds of review were mentioned.  In her supporting affirmation, she stated that she was unhappy with the decision.  There was still problem in her family. She gave a vague assertion that no state will return a person when there are substantial grounds of danger.  After the Judge invited the applicant for submissions, she sent a letter saying that she still had problems in her family, that she had problems with the police, that she constantly quarrelled with ex-husband.  

5.2   The Judge held on 4 March 2021 that while the Board gave favourable consideration to the applicant on the account of her case, taking the evidence as a whole, the applicant did not satisfy the degree of risk needed to establish non-refoulement.  The complaints raised before the Judge were broad and generally vague without particulars.  The applicant could not demonstrate unreasonableness in the public law sense.  There was no error or procedural unfairness present.

6)   Grounds of appeal

6.1   The applicant filed her notice of appeal within time, where she stated that she will face hardship if refouled. She claimed that the Board relied on source of news which was not officially recognized or was simply hearsay.  It also relied on cases which were outdated.

6.2   In the applicant’s written submissions, she raised a variety of broad and general case authorities and legal principles that are commonly cited in non-refoulement cases without particulars as to how they relate to her case.

7)   Our view

7.1   We are of the view that the above are all bare allegations without particulars or specifics.  The applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong  v Yusuf Yu[2018] HKCA 451 at [38] and [39]. 

7.2   It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

7.3   We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.