RE PRASTIWI

CACV 276/2024, [2025] HKCA 666

On Appeal From [2024] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 276 OF 2024

(ON APPEAL FROM HCAL NO. 1565 OF 2019)

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DECISION

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

I. Leave to appeal to the Court of Final Appeal

1.  On 25 October 2024, 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 Bruno Chan given on 4 July 2024 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 5 November 2024, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in her notice of motion the following in summary :

1)  The Torture Claims Appeal Board (‘the Board’)  and the Director of Immigration did not consider the reason why she does not return to her home country.  It is because her enemies would kill her if they found out that she has returned;

2)  The applicant’s claim under BOR 2 and BOR 3 is very realistic and her fear is genuine;

3)  They failed to consider the Country of Origin condition of her country.

4.  The applicant’s written submissions consist entirely of general statements of law and bald assertions to procedural unfairness.

II.  Our view

5.  Under section 22(1)(b)  of the Hong Kong 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 are broad and vague assertions that do not pertain to nor explain and elaborate on the particular circumstances of the applicant.  A challenge to findings of fact is within the province of the Board.  In any event, the matters stated do not constitute grounds for granting leave to appeal 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 Ordinance.  Nor is there any such question apparent to us from the matters raised by the applicant. 

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 5 November 2024 is dismissed.

Applicant, unrepresented, acting in person

CACV 276/2024, [2024] HKCA 976

On Appeal From [2024] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 276 OF 2024

(ON APPEAL FROM HCAL NO. 1565 OF 2019)

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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)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (‘the Judge’)  of 4 July 2024 in which he refused to grant leave to her to apply for judicial review.

2)  Background

2.  The applicant is a national of Indonesia.  She came to Hong Kong in 2015 as a foreign domestic helper but her contract was pre-maturely terminated in 2017 upon which she overstayed.  In April 2018, the applicant was arrested by the Police. Shortly after her arrest, she raised her non-refoulement claim[1].

3.  The basis of the applicant’s claim is that she would be harmed or killed by her uncle Suryono and a loanshark Sukarno from whom Suryono had taken out a loan and named the applicant as the guarantor[2] of the loan.

4.  The background facts have been summarized in the decision of the Judge at [2] to [5].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 2 August 2018.  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[3] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)  on 13 August 2018[4]. After a hearing held on 28 January 2019, the Board dismissed the applicant’s appeal on 31 May 2019 (‘the Board’s Decision’).

7.  The Board’s findings are summarized in the decision of the Judge at [10].

5)  Decision of the Judge

8.  The applicant filed her Form 86 and affirmation with various grounds of her intended challenge which are summarized in the decision of the Judge at [11].

9.  The Judge held that the applicant’s intended grounds of challenge are all bare and vague assertions containing a few key words and phrases but without the necessary particulars as to how they apply to the applicant’s case, details to be found in the decision of the Judge at [12].

6)  Grounds of appeal

10.  The applicant in the Notice of Appeal stated that :

‘ 1. failure to consider my fear that i had stated in my claim that why I would not return back to my country because of fear for my life into my country of origin.

2.  failure to consider my claim under BOR 2 and BOR 3 risk that why I would not face problem in my country after reform’

11.  The applicant’s written ‘Skeleton Submissions’ can be summarized as follows :

(1)  Her life is still in danger;

(2)  The Judge failed to take into account relevant consideration, and took into account irrelevant consideration;

(3)  The Judge did not follow high standard of fairness.  Country of origin information shows that the applicant’s country does not protect her.  The Board did not believe her claim;

(4)  The decision makers did not observe her claim properly;

(5)  The decision makers did not focus on her fear; and

(6)  The Judge simply confirmed the Board’s Decision.

12.  In Court, the applicant stated that she would like to stay in Hong Kong to take care of her child who is diagnosed with Autism Spectrum Disorder and she produced medical reports of her child.

7)  Our view

13.  We are of the view that the applicant’s appeal is without merits.  Her grounds of appeal and written submission consist of bare allegations without particulars or specifics.  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].

14.  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.  None of the arguments raised by the applicant shows the Judge has made any error of law.  

15.  In respect of her child, the applicant accepted that she is not an applicant in these proceedings and in our view, the child is not a matter that affects the outcome of the appeal.

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

Applicant, unrepresented, appearing in person