Case Document

100%Judiciary

CACV 517/2018

[2019] HKCA 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 517 OF 2018

(ON APPEAL FROM HCAL 194/2018)

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RE:

WAHYUNI

Applicant

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Before: Hon Chu JA, M Poon and Lisa Wong JJ in Court

Date of Written Submissions: 8 April 2019

Date of Judgment: 24 May 2019

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

1.By a judgment dated 4 March 2019[1] (“Judgment”), this court dismissed the abovenamed applicant’s appeal from Deputy High Court Judge Josiah Lam’s decision dated 5 October 2018[2] refusing him leave to apply for judicial review of the Torture Claims Appeals Board (“Board”)’s decision dated 8 December 2017 in respect her non-refoulement claim.

2.By a notice of motion filed on 11 March 2019, the applicant sought leave to appeal against the Judgment to the Court of Final Appeal (“CFA”). The notice of motion read as follows:

“- The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

- On the strength of the grounds not made a complain about the poor performance of his duty lawyer is due of fearing she will be picked out for misappropriating by the adjudicator.

- The applicant gently did not have enough time to address the bundle, rest of the grounds I will submit as soon as possible.”

3.By an affidavit filed on the same date as the notice of motion, the applicant put forward these 2 grounds for her application:

(1) “The Honourable Judges from the Court were wrong in law in holding that there was no state acquiescence or involvement.”

(2) “The Honourable Judges from the Court also failed to find out the clear details of the current situation of Indonesia.”

4.The applicant then filed 10-page long written submission on 8 April 2019, in which she set out articles 4 and 7 of the International Covenant on Civil and Political Rights, s 5 and articles 2 and 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383), articles 28, 38, 41 and 48 of the Basic Law and articles 1, 2, 3 and 16 of the United Nations Convention against Torture. She also cited passages from a number of case authorities.

5.The applicant has not by her notice of motion, affidavit or written submissions identified any issue of great, general or public importance that should be submitted for determination by the CFA. The statutory criteria laid down in s 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) is thus not met.

6.Nor do we see any basis to grant leave on the “otherwise” limb under s 22(1)(b).

(1) We do not quite follow the first ground stated in the notion of motion. Insofar as it is suggested in the second ground that the applicant had wanted, but chosen not, to complain in her appeal to the Board about the performance of the duty lawyer representing her before the Director of Immigration (“Director”), we do not see any consequential prejudice to the applicant because the appeal before the Board was in the nature of a complete re-hearing. The third ground (insufficient time to “address the bundle”) is baffling. The appeal bundle before us was actually compiled and lodged by the applicant herself.

(2) Turning to the affidavit, the 2 grounds stated therein are misconceived as a matter of law. As explained in paragraph 15 of the Judgment, the Director and the Board are the fact finders in a non-refoulement claim. They alone take, and assess, the evidence including country of origin information and find facts including those relating to state acquiescence or involvement, if relevant. We did not in the Judgment hold as to the presence or absence of state acquiescence or involvement. Nor was it not within our purview to “find out the clear details of the current situation of Indonesia”.

(3) As for the written submission, notwithstanding the length of the document, the applicant has not stated how the convention articles or judicial statements quoted therein apply to her case.

7.For these reasons, we dismiss the notice of motion.