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CACV 565/2024, [2025] HKCA 726
On Appeal From [2024] HKCFI 3402
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 565 OF 2024
(ON APPEAL FROM HCAL NO. 2248 OF 2019)
________________________
| RE: |
WAHYU FITRIYANI |
Applicant |
________________________
| Before: |
Hon Cheung JA and K Yeung J in Court |
| Date of Hearing: |
30 July 2025 |
| Date of Judgment: |
28 August 2025 |
________________________
J U D G M E N T
________________________
Hon Cheung JA (giving the Judgment of the Court) :
1) The appeal
1. This is an appeal by the applicant against the Judgment of Deputy High Court Judge KW Lung of 17 December 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 arrived in Hong Kong in January 2015 as a foreign domestic helper and was permitted to remain on a two-year visa or two weeks after contract termination, which ever the earlier. Her contract was prematurely terminated and she overstayed. In November 2015, the applicant was intercepted by the Immigration Department, and she was subsequently convicted and sentenced to imprisonment[1].
3. The basis of the applicant’s claim is that she would be harmed or killed by her husband due to a personal dispute[2].
4. The background facts have been summarized in the Judgment at [4] to [6].
3) The Director’s Decision
5. The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 24 September 2018. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Bill of Rights Article 2 (right to life) risk as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).
4) The Board’s Decision
6. The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’). An oral hearing was held on 26 March 2019. By a decision dated 3 June 2019, the Board dismissed the appeal/petition (‘the Board’s Decision’)[4].
7. The Board’s finding is summarized in the Judgment at [10] to [11].
5) Decision of the Judge
8. The applicant filed her Form 86 and supporting affirmation on 27 August 2019[5]. No specific reason(s) to challenge the Board’s Decision was raised.
9. The Judge held that the applicant has failed to raise any valid reason to challenge the Board’s Decision. The Court had no reason to interfere with the Board’s finding of fact or its view on evidence. There was no realistic prospect of success in the intended application[6].
6) Grounds of appeal
10. The applicant in the notice of appeal stated the following :
‘ I am disagree with the decision maker authorities I could not go back to Indonesia because my life still in danger and moreover I have two children hear in Hong Kong whom is two of them is Hong Kong born and citizen of Hong Kong.’
7) Our view
11. 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 the refusal to grant 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].
12. 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 or matters raised by the applicant shows the Judge has made any error of law.
13. Even taking the applicant’s contention to its highest (i.e. that the applicant does have two Hong Kong born children and are citizens), as stated in the Board’s Decision at [65]-[70], these two children would not be subject to refoulement.
14. In the written submission, the applicant reiterated general statements of law and bare assertions without any evidence in support. She did not explain how those allegations related to her case. At [4] of these written submission, she complained that she was never provided with proper legal and language assistance. This is factually incorrect as the applicant was provided with duty lawyer assistance before the Director[7]. It is also trite that high standards of fairness does not entail an absolute right to free legal representation at all stages of the proceedings : Re Zunariyah[8]. Further, the applicant has not complained of lack of language assistance before the Board. As most if not all Court documents that the applicant has provided are in English, it indicates that the applicant must have means and access to language assistance as needed. In any event, the high standard of fairness required by law would not entail an interpretation service to be made available at any time as the applicant desired[9].
15. We see no basis to disturb the Judgment. Accordingly, the appeal is dismissed.
| (Peter Cheung) |
(Keith Yeung) |
| Justice of Appeal |
Judge of the
Court of First Instance |
Applicant, unrepresented, appearing in person
[1] Director’s Decision at [8];
[2] Director’s Decision at [2];
[3] Director’s Decision at [9]-[10];
[4] Board’s Decision at [2], [5];
[5] Folio 1, 2; Judgment at [13], [14];
[6] Judgment at [17], [18];
[7] Board’s Decision (3 June 2019) at [2(8)];
[8] [2018] HKCA 14;
[9] Re Gurnishan Singh [2018] HKCA 704 at [13].
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