RE EMY NURYANI alias EMY-NURYANI alias EMY NURYANTI alias EMY-NURYANTI alias NURYANI EMY alias NURYANTI EMY

CACV 394/2024, [2025] HKCA 876

On Appeal From [2024] HKCFI 2426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2024

(ON APPEAL FROM HCAL NO. 1774 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 27 January 2025, this Court (Cheung JA and Cheng J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 12 September 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 10 February 2025, 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)  If the applicant returns she would be exposed to torture;

2)  If the applicant returns home it would violate her absolute right to life; and

3)  The applicant has a son in Hong Kong and it would be risky to take him with her back to her home country.

4.  The applicant’s written submissions stated the following in summary :

1)  The applicant still fears for her life if she returns to her home country[1];

2)  The Board/the Director failed to take into account relevant considerations or took into account irrelevant consideration, including not following high standard of fairness, the suggested relocation being unsafe, and her claim should be assessed under BOR 3 risk[2];

3)  The decision maker did not observe the applicant’s fear properly[3]; and

4)  The applicant’s contentions are real[4].

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 are broad and vague assertions that do not pertain to nor explain and elaborate on the particular circumstances of the applicant.  Findings of fact are 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 10 February 2025 is dismissed.

CACV 394/2024, [2025] HKCA 98

On Appeal From [2024] HKCFI 2426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2024

(ON APPEAL FROM HCAL NO. 1774 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 of 12 September 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 entered Hong Kong in June 2009 as a domestic helper and was permitted to stay until July 2010 or within two weeks of termination of contract.  Her contract prematurely terminated in August 2009, and her stay was extended until October 2009 but she overstayed.  In June 2011, the applicant lodged a torture claim which was rejected in February 2013.  The applicant submitted a supplementary claim form in August 2018 for lodgement of a non-refoulement claim that covered BOR 3 risk, BOR 2 risk and persecution risk (except for torture risk)[1].

3.  The basis of the applicant’s claim is that if she returns she would be harmed or killed by an owner of a rice field as her father owes that person money for which the applicant was responsible for repaying[2]. She also fears that if she returns to Indonesia she would be harmed or discriminated by the local Muslim community for having given birth to a son out of a relationship with a Chinese man in Hong Kong.  The son is not an applicant in his mother’s application for non-refoulement and for judicial review.

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

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s torture risk on 4 February 2013.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim (except for torture risk)  on 11 October 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 persecution except torture[3] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision of 11 October 2018 to the Board on 25 October 2018[4]. After a hearing held on 5 March 2019, the Board dismissed the applicant’s appeal on 25 April 2019 (‘the Board’s Decision’).

7.  The Board’s findings are summarized in the decision of the Judge at [7]-[8].

5)  Decision of the Judge

8.  The applicant filed her Form 86 and affirmation, and no grounds for seeking relief were provided nor had the applicant provided grounds during the hearing before the Judge.

9.  The Judge held that in the absence of any error of law there was no reasonably arguable basis for the applicant’s intended challenge.  The Board rejected the applicant’s case on its adverse finding of her credibility at [44]-[68] of the Board’s Decision[5].

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated that the Judge :

‘ 1. Failed to consider the reasons why I would not return to my country its only reasons is fear. Fear for my life that I will be killed or harm by my enemies upon refoulement.

2.  The TCAB and the Director failed to consider proper fact under BOR 2 and BOR 3 risk.’

11.  The applicant’s written submission can be summarized as follows :

(1)  The assessors held that her claim was not established because they considered that her fear is too low.  But her life is still in danger if she is refouled;

(2)  The Board and the Director failed to take account relevant considerations or took into account irrelevant considerations;

(3)  The Judge did not follow high standard of fairness;

(4)  The country of origin information clearly shows that no protection to her will be provided;

(5)  The decision maker did not observe her claim well;

(6)  Her claim is not a private matter;

(7)  The Court did not focus on her fear;

(8)  The Judge just confirmed the Board’s Decision;

(9)  It is hard for her as an ordinary woman to survive in her home country; and

(10)  Her son is born in Hong Kong and she must take care of him as he is sick.

7)  Our view

12.  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].

13.  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. 

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

Applicant, unrepresented, appearing in person