RE IDA LAILA

CACV 400/2023, [2024] HKCA 828

On Appeal From[2023] HKCFI 2886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 400 OF 2023

(ON APPEAL FROM HCAL NO. 1945 OF 2020)

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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 K W Lung of 21 November 2023 in which he refused to grant extension of time for her to apply for leave for judicial review and dismissed her application for leave to apply for judicial review.

2.  The applicant consented on 5 December 2023 for the appeal to be determined on paper without an oral hearing.  It was not until 29 May 2024 that the applicant lodged with the Court written submissions when the Registrar of Civil Appeals has directed on 5 December 2023 that the applicant should lodge her written submissions by 19 December 2023, failing which she will be deemed to have abandoned the right to rely on written submission.  We have considered the applicant’s written submission in our disposal nonetheless.

2)  Background

3.  The applicant is a national of Indonesia.  She last entered Hong Kong in January 2013 as a domestic helper and she was permitted to stay until February 2014.  In May 2013, it was found that she impersonated another foreign domestic helper in the replacement of a Hong Kong Identity Card and was intercepted.  She was convicted and sentenced in June 2013.  She made a torture claim in July 2013 but that was rejected by the Immigration Department in December 2013.  She lodged a non-refoulement claim in August 2013[1].  

4.  The basis of the applicant’s claim is that she would be harmed or killed by her husband.  She also fears of lenders of her husband who may harm or kill her as they lent money to her husband[2].

5.  The background facts have been summarized in the decision of the Judge at [5].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 28 December 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 for torture[3] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 24 June 2019, the Board dismissed the applicant’s appeal on 31 July 2019 (‘the Board’s Decision’).

8.  The Board found that there are various inconsistencies in the applicant’s evidence which led it to find that the applicant was in fact not subjected to violence from her husband from 2006.  It was not satisfied that the applicant’s husband regularly beat her either because he was drunk or under drug influence or when he wanted money.  It was not satisfied that the husband was a member of a drug syndicate.  It was not satisfied that since the applicant came to Hong Kong she had seldom contacted her son or has had no contact with her family since 2017.  Taking into account the applicant’s evidence and country of origin information, the Board found that there was no real risk that the applicant will be harmed by the husband upon her return given they have not been in contact for years.  The Board also did not accept that the applicant will suffer harm from a loan shark that she claimed her husband borrowed money from, as her evidence in this aspect was vague and her knowledge about the loan was lacking[4]. 

5)  Decision of the Judge

9.  The applicant filed her Form 86 and supporting affirmation on 28 September 2020 with no specific ground raised[5]. 

10.  The Judge held that the applicant had not provided any valid reason to challenge the Board’s Decision.  There was no error of law or procedural unfairness in the Board’s Decision.  The applicant has no realistic prospect of success in the intended judicial review application[6].

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following in summary which we are of the view are broad and vague assertions that do not pertain to any specificity in the applicant’s case :

(1)  The Director, the Board and the Court failed to appreciate state acquiescence;

(2)  The Adjudicator failed to make sufficient enquiry;

(3)  The Director referred to country of origin information which was pre-conceived; and

(4)  The gravity of the applicant’s circumstance has not been weighed or realized.

12.  The applicant in her affirmation also stated broad and vague assertions that include how a good ground of appeal was not necessarily considered at the leave stage.

13.  The applicant’s written submission consists of general statements of law, quotation from cases and bald statements of procedural unfairness.

7)  Our view

14.  We are of the view that the applicant’s appeal is without merits.  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].

15.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

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