YENY RISTYOWATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 399/2019

[2021] HKCA 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 399 OF 2019

(ON APPEAL FROM HCAL NO 1865 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and S T Poon J) handed down on 13 December 2019 ([2020] HKCA 1392). The Court of Appeal dismissed her appeal against the decision of Deputy High Court Judge K. W. Lung on 23 August 2019 ([2019] HKCFI 2071) refusing leave to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 23 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged her written submissions on 2 January 2020. Having considered her submissions, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Indonesia of 43 years old. She came to Hong Kong in 2009 to work as a domestic helper and her employment contract was prematurely terminated on 12 January 2015. She raised a non-refoulement claim on 26 May 2015 which was rejected by the Director of Immigration (“the Director”) on 15 September 2017. Her appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 24 August 2018.

4.  She filed a Form 86 on 7 September 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  Her application was refused by DHCJ K. W. Lung on 23 August 2019.

5.  On 2 September 2019, the applicant filed a Notice of Appeal against the judge’s decision.  Her appeal was heard by the Court of Appeal on 10 December 2019.  It was dismissed by the Court of Appeal on 13 December 2019.  The applicant filed a Notice of Motion on 19 December 2019 for leave to appeal to the Court of Final Appeal.

6.  The applicant stated the following grounds of appeal in her Notice of Motion: 

(1)  The Court of Appeal did not focus on her fear or did not properly observe the procedure of the non-refoulement claim by the Board and the Director’s conduct. 

(2)  Their decision only focused on minimizing the fear.

(3)  She is seeking for protection of her life in the non-refoulement claim.

7.  Her submissions in writing may be summarized as follows:

(1)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the country of origin conditions of her claim and adopted a passive approach in contravention of the high standards of fairness.

(2)  They failed to take into account and/or give proper weight to relevant considerations and materials which they should have and hence their decisions are illegal.  In particular, they failed to give due regard to (a) the fact that she received death threats from her enemies and they are still looking for her to take revenge against her; (b) the fact that her claim is based on a true story, her risk may be a private and personal dispute but her life would be too risky if she returns to her country.

8.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9.  Her grounds of appeal are just bare assertions without evidence in support.  She has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10.  Therefore, her Notice of Motion filed on 19 December 2019 should be dismissed.