RE EDI SUBAGIO

CACV 96/2019

[2019] HKCA 690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 96 OF 2019

(ON APPEAL FROM HCAL NO. 1186 OF 2018)

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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

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 20 March 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Indonesia.  He came to Hong Kong as a visitor on 11 July 2013 but he overstayed.  On 11 August 2013, the applicant was arrested by the Police.  He raised a non-refoulement claim on 13 August 2013.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by Sri Rahayu, a loan shark, from whom he had borrowed money.

2.3  The background facts have been summarized in the decision of the Judge at [2] and [3].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 30 August 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 9 May 2018, the Board dismissed the applicant’s appeal on 21 June 2018 (‘the Board’s Decision’).

4.2  The Board found that the applicant presented a very vague picture of his stories.  He had not made out his case on torture risk, persecution risk, BOR 3 or BOR 2. The alleged torturer could not be regarded as a state actor.

5)  Decision of the Judge

5.  The Judge addressed the grounds relied upon by the applicant.  He stated that when the applicant was appearing before him, he admitted that the grounds for seeking leave for judicial review were not written by him, but by his friend.  The applicant confirmed that he received his hearing bundle shortly before the Board hearing. He confirmed that his friend explained the contents of the bundle to him.  He admitted that he was not confused when he attended the hearing before the Board.  He neither had complaints against the Director nor the Board.  The Judge held that there was no evidence to support his grounds to seek leave for judicial review. 

6)  Grounds of appeal

6.1  The applicant in the notice of appeal referred to his grounds of appeal in his supporting affirmation.

6.2  The applicant in his supporting affirmation gave bare assertions that the Judge was wrong in holding that there was no state acquiescence, and that the Judge failed to give detailed reasons.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  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 of 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].  None of these errors exists in this case.

7.2  Accordingly, the appeal is dismissed.