RE WARIYANI WASITO

CACV 379/2021

[2022] HKCA 762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 379 OF 2021

(ON APPEAL FROM HCAL NO. 2786 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I.  Leave to appeal to the Court of Final Appeal

1.  On 2 December 2021, this Court (Cheung JA and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 5 August 2021 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 3 December 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in her notice of motion the following :

‘ I want to challenge the decision’

4.  The applicant stated in her written submissions that there were errors made by the Director of Immigration and the Torture Claim Appeal Board and she wants to appeal to the Court of Final Appeal.

II.  Our view

5.  Under section 22(1)(b) of the HongKong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) 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.

6.  The matters stated by the applicant in her notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters she has raised in her notice of motion and written submissions. 

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

III.  Disposition

8.  For these reasons, the notice of motion dated 3 December 2021 is dismissed.

CACV 379/2021

[2021] HKCA 1818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 379 OF 2021

(ON APPEAL FROM HCAL NO. 2786 OF 2018)

________________________

________________________

________________________

J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

I. The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court K W Lung of 5 August 2021 in which he refused to grant leave to her to apply for judicial review.

2.  This appeal was scheduled to be heard on 16 November 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 2 September 2021, she failed to lodge the skeleton argument by the stipulated time.  Accordingly, the hearing was vacated and we will deal with this appeal on paper.

II.  Factual background

3.  The applicant is a national of Indonesia.  She last arrived in Hong Kong in May 2011 as a domestic worker.  She did not depart after she had finished her employment contract and she overstayed.  On 4 September 2014, she applied for non-refoulement protection.  On 20 October 2014, she gave birth to her son in Hong Kong.  On 27 October 2014, the applicant raised a non-refoulement claim for her son as well.

4.  The basis of the applicant’s claim is that she would be harmed or killed by her parents by beating because she has given birth to her son out of wedlock.

5.  The background facts have been summarized in the decision of the Judge at [6].

III.  The Director’s Decisions

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s and the applicant’s son non-refoulement claims on 30 July 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director decided against the applicant’s and the applicant’s son’s right to life claim on 18 April 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

IV.  The Board’s Decisions

8.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)  on 13 August 2015.  After a hearing held on 29 June 2016, the Board dismissed the applicant’s appeal on 27 January 2017 (‘the Board’s Decision’).  

9.  The Board found that the applicant, and for obvious reasons also her son, has never been arrested, detained or imprisoned in Indonesia.  The applicant was able to move freely in and out of Indonesia.  There was no evidence of physical or mental pain and suffering.  There was no foreseeable and real risk of torture that could be found.  Internal relocation was possible.

10.  The applicant appealed against the Director’s Further Decision on BOR 2 to the Torture Claims Appeal Board (‘the Board’)  on 28 April 2017.  The Board on paper dismissed the applicant’s appeal on 29 November 2018 (‘the Board’s Further Decision’).

11.  The Board found that there was no need for an oral hearing merely to re-canvass the same case which has been dealt with before.  The case was clear and the application was refused.

V.  Decision of the Judge

12.  The applicant filed her Form 86 with supporting affirmation.  It was the applicant’s application only without her son.  In her supporting affirmation, the applicant simply annexed the two Board’s decisions and the Director’s Further Decision.

13.  The Judge held that it cannot find any error of law or procedural unfairness in the Board’s Decisions.  The applicant failed to show any reasonable prospect of success.

VI.  Grounds of appeal

14.  The applicant in the notice of appeal stated that she wants to challenge the Judge’s decision.  Again, the present appeal is that of the applicant only.

VII.  Our view

15.  We are of the view that 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]. 

16.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person