RE KASIANI EDY SUSILO

CACV 391/2024, [2025] HKCA 97

On Appeal From [2024] HKCFI 2533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 391 OF 2024

(ON APPEAL FROM HCAL NO. 1956 OF 2019)

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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 Reuden Lai of 19 September 2024 in which he refused to grant leave to her to apply for judicial review.

2)  Background

2.  The applicant is a national of Indonesia.  She first came to Hong Kong to work as a foreign domestic helper in 1999.  Her last employment contract was terminated in 2011.  She overstayed in Hong Kong and was arrested in August 2011.  Shortly, she made a torture claim but she failed to return a completed claim form and so her torture claim was deemed as withdrawn in December 2012.  By written submissions in November 2013 and December 2013, the applicant lodged her non-refoulement claim.  In September 2016, the applicant gave birth to her daughter in Hong Kong, whom on her behalf the applicant in November 2016 lodged a non-refoulement claim based on the same grounds of her own claim.  Both the applicant and her daughter’s claims were considered by the Director.  In August 2024, the applicant confirmed before the Judge that she gave birth to a son in Hong Kong after her daughter.  In July 2019, the applicant filed her Form 86 seeking leave for judicial review of the Board’s decision for herself only, as both the daughter and the son are permanent residents of Hong Kong[1].

3.  The basis of the applicant’s claim is that if she or she and her daughter returns to Indonesia they would be harmed because the applicant fears that she might be arrested for adultery, or that they will not be safe and discriminated against because the applicant is a married woman.  Her ex-husband lives in Indonesia.  The daughter is not the child of her ex-husband.  The daughter is illegitimate and was born out of the relationship between the applicant and a person called William.

4.  The background facts have been summarized in the decision of the Judge at [9] to [15].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant and the applicant’s daughter’s non-refoulement claim on 31 July 2017.  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 torture and persecution[2] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board in August 2017[3].  After a hearing held on 7 December 2017, the Board dismissed the applicant’s appeal on 30 May 2019 (‘the Board’s Decision’).

7.  The Board’s findings are summarized in the decision of the Judge at [30]-[34].

5)  Decision of the Judge

8.  The applicant filed her Form 86, affirmation and written submission but no viable ground for seeking relief was provided.

9.  The Judge held that the applicant did not provide any particulars or specifics as to how the Board had erred in its decision, or how the decision was unfair or unreasonable or procedurally unfair or irrational[4].

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated that the Board and the Court disregarded her dangerous situation.

11.  The applicant’s written submission can be summarized as follows :

(1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

(2)  The Decision has a significant effect on the applicant’s torture claim;

(3)  High standards of fairness is required for determining torture claims : Secretary for Security v Prabakar [2005] 1 HKLRD 289;

(4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question : R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D-G;

(5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

(6)  The Court should not usurp the function of the Secretary;

(7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination : R v Home Secretary, Ex-Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

(8)  The applicant should be given every reasonable opportunity to establish her claim;

(9)  It was open to the Board to take into account substantive merits, and the Board erred in its approach by simply trying to find fault with the decision of the Immigration Officer;

(10)  The Board ought to have considered the applicant’s country conditions, the need for it was made clear in Prabakar yet the Board did not do so; and

(11)  There are minimum standards of procedural fairness, and the decision maker is under duty to act fairly, and this is a constitutional duty.

7)  Our view

12.  We are of the view that the applicant’s appeal is without merits.  Her grounds of appeal and written submission consist of bare allegations without particulars or specifics.  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].

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

14.  In respect of the applicant’s written submissions,

(1)  The allegation that the Board did not consider country of origin information is factually incorrect: see Board’s Decision at [38].

(2)  The allegation that the Board simply tried to find fault in the Director’s Decision has no reasonably arguable basis.  The Board has considered the evidence in the hearing bundle and also invited the applicant to give evidence, where the applicant has chosen not to give evidence and relied in her documents submitted.  See the Board’s Decision at [12], [24]-[25].

15.  The applicant stated in Court that she wishes to stay in Hong Kong to look after the two children that she gave birth in Hong Kong because their father is too old to look after them and he cannot support them.  The daughter has applied for Comprehensive Social Security Assistance.  In our view this is not a proper ground for challenging the Judge’s decision.

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