Frisca Ayudya Aryani and Another v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office and Another

CACV 475/2018

[2019] HKCA 214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 475 OF 2018

(ON APPEAL FROM HCAL NO 1072 OF 2017)

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J U D G M E N T

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

1.By a judgment dated 9 January 2019 ([2019] HKCA 22), the Court of Appeal (Hon Yeung Acting CJHC and Poon JA) dismissed the 1^st and 2^nd applicants’ appeal against the decision of Deputy High Court Judge Bruno Chan dated 14 September 2018 refusing to grant leave to them to apply for judicial review.  The intended judicial review was against the decisions of the Director dated 10 August 2016 and 11 August 2017 and the decision of the Torture Claims Appeal Board dated 30 November 2017.  The 1^st and 2^nd applicants now seek leave to appeal to the Court of Final Appeal.

2.The facts and issues in 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.By a notice of motion dated 17 January 2019, the 1^st and 2^nd applicants applied for leave to appeal against our judgment to the Court of Final Appeal.

4.In the Notice of Motion, the 1^st and 2^nd applicants set out the following ground :

“ We are not satisfied with the decision because our life is not save (sic) in my country. If we return to my country (we) may be tortured or killed. Please help us to stay in Hong Kong until we have problem. We are looking towards your kind attention over this application.”

5.In compliance with the direction given by Master Au-Yeung on 21 January 2019, the 1^st and 2^nd applicants lodged their written submissions on 28 January 2019.  In the written submissions, the 1^st and 2^nd applicants reiterated the factual background of their case and their worries of being harmed or even killed if refouled to their home country.

6.We have duly considered the 1^st and 2^nd applicants’ notice of motion and their written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

7.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  The bare assertions by the 1^st and 2^nd applicants that it is unsafe for them to return to their home country is not a valid ground for the present purpose.  In any event, the Board found against the 1^st and 2^nd applicants on the credibility of their case.  The Board’s decision was subjected to anxious scrutiny by the Judge, and he was unable to find any merit in the applicants’ intended judicial review against the Board’s decision.

8.For the reasons that we gave in our judgment of 9 January 2019, we did not see any prospect of success in the 1^st and 2^nd applicants’ intended appeal against the Judge’s order.  None of the questions raised by the 1^st and 2^nd applicants in the notice of motion or in their written submission involve an arguable point or a question of great general or public importance.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap. 484) are not met.

9.Accordingly, we refuse to give the 1^st and 2^nd applicants leave to appeal to the Court of Final Appeal and dismiss their notice of motion.

The 1^st and 2^nd applicants, unrepresented, acted in person