RO'YUN NACHIF AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CACV 298/2023, [2025] HKCA 683

On appeal from [2023] HKCFI 2320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 298 OF 2023

(ON APPEAL FROM HCAL NO 1253 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicants’ Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 November 2024 ([2024] HKCA 1034). The Court of Appeal rejected the appeal against the decision of Deputy High Court Judge Bruno Chan dated 13 September 2023 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicants’ non-refoulement claims.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicants lodged their written submissions on 29 November 2024. Having considered the written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Analysis and disposition

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

4.  In the present application, the applicants put forward the following grounds in their written submissions:

(1)  Indonesia struggles with human trafficking;

(2)  Children who were born out of wedlock in a Muslim country are discriminated and threatened to be killed;

(3)  The 1^st applicant and her son are facing horrifying danger if they should be returned to Indonesia;

(4)  The Board failed to apply the Convention of the Rights of the Child (“CRC”) when assessing their claims.

5.  The applicants cited extracts from Myanmar Times of 18 January 2018, Huffington Post of 16 December 2017 and DW.com but did not provide copies of the relevant news reports. These quotations from old news reports would appear to be out of context and not directly related to their own case. We consider them far from sufficient to support the applicants’ assertions.

6.  As for the applicants’ ground relying on the CRC, it is established that the CRC being an international convention which has not been domesticated into local law in Hong Kong has no force of law in Hong Kong and no purported rights under the CRC are engaged in the present case[1]. In any event, the applicants failed to demonstrate how the Board’s assessment was wrong when the Board has already made separate consideration of the personal circumstances of the 2^nd applicant as a minor who was born out of wedlock.

7.  The applicants 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).

8.  For the above reasons, we dismiss the Notice of Motion filed on 18 November 2024.