Case Document

100%Judiciary

CACV 538/2018

[2019] HKCA 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 538 OF 2018

(ON APPEAL FROM HCAL NO 132 OF 2018)

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RE:

YENI ASTUTI

Applicant

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Before: Hon Chu, Barma and Au JJA in Court

Date of Written Submissions: 29 April 2019

Date of Judgment: 2 August 2019

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.By a judgment dated 8 April 2019 ([2019] HKCA 396) (“the Judgment”), this Court (Hon Chu, Barma and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 29 October 2018 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”). The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 17 January 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 25 July 2016 (“the Director’s First Decision”) and 10 July 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim. The applicant now seeks 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 the Judgment. We will not repeat them here.

3.By a Notice of Motion dated 16 April 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.In the Notice of Motion, the applicant set out the following grounds:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

5.In compliance with the directions given by Master Au-Yeung on 18 April 2019, the applicant lodged her written submission on 29 April 2019. In her written submission, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005]1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim. She also argued that the decision maker was Wednesbury unreasonable. Apart from that, she failed to identify any errors in the Judgment.

6.We have duly considered the applicant’s Notice of Motion and her written submission. Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

7.First of all, the ground of appeal concerns complaint against the decision maker, ie, the Board. The Board’s Decision was assessed by the Deputy Judge under rigorous examination and anxious scrutiny before concluding that there was no error in it (paragraph 42 of the Deputy Judge’s Decision). This court found no error in the Deputy Judge’s conclusion: see paragraph 18 of the Judgment.

8.Secondly, the authorities quoted in her skeleton submissions do not assist her in this appeal. Those were general principles that both the Deputy Judge and this court borne in mind when determining the applicant’s case: see paragraph 31 of the Deputy Judge’s Decision. We do not find any legal error in his decision: see paragraph 18 of the Judgment.

9.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.

10.None of the grounds raised by the applicant identify any errors in the Judgment. These are not viable grounds.

11.In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision. None of the questions raised by the applicant in the Notice of Motion or in her written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision. Nor do we see any basis to grant leave on the “otherwise” limb. 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 are not met.

12.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion.