RE JARWO EDI MIFTAHUN

CACV 201/2023 , [2024] HKCA 724

On Appeal From [2023] HKCFI 1607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 201 OF 2023

(ON APPEAL FROM HCAL NO. 2358 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 Bruno Chan of 16 June 2023 in which he refused to grant leave to him to apply for judicial review.

2.  By written confirmation of the applicant dated 29 June 2023, the applicant consented to the appeal being disposed of on paper without oral hearing.  By directions of the Registrar of Civil Appeal dated 29 June 2023, the applicant was to file his written submission by 13 July 2023, failing which he will be deemed to have abandoned his right to rely on written submission.  On 26 October 2023, being well past the stipulated deadline, the applicant lodged his written submission.  The Court will take into consideration his submission in our decision.

2)  Factual background

3.  The applicant is a national of Indonesia.  He entered Hong Kong in January 2017 as a visitor but he overstayed and was arrested in February 2018.  On 27 April 2018, he applied for non-refoulement protection[1].

4.  The basis of the applicant’s claim is that he would be harmed or killed by his creditor Muhadi and his followers due to his inability to repay a loan[2].

5.  The background facts have been summarized in the decision of the Judge at [2]-[6].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 27 September 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 torture and persecution (‘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 2 July 2019, the Board dismissed the applicant’s appeal on 9 August 2019 (‘the Board’s Decision’).

8.  The Board’s findings have been summarized in the decision of the Judge at [10].

5)  Decision of the Judge

9.  The applicant filed his Form 86 with supporting affirmation but no ground for seeking relief was provided, and the applicant simply stated that he was not satisfied with the decision as his life was still at risk of being killed by his creditor without putting forward any proper ground for the intended challenge.

10.  The Judge held that in the absence of error of law or irrationality or procedural unfairness clearly identified by the applicant, there was no reasonably arguable basis for the intended challenge[3].

6)  Grounds of appeal

11.  The applicant in the notice of appeal attached four pages of handwritten notes.  A summary of those notes is as follows :

(1)  Both the Director and the Board rejected the applicant’s claim;

(2)  The applicant lacked legal knowledge and also knowledge in English and Chinese, therefore he could not provide proper grounds in his Form 86 application;

(3)  While detained in custody, the applicant communicated with this family in Indonesia and found out that the creditors were still looking for him and threatened his family;

(4)  The applicant’s family told the applicant that the police was involved and that the police have connections with the creditor;

(5)  The applicant’s family told the applicant not to return to Indonesia; and

(6)  The applicant asks the Court to reconsider his application.

12.  The applicant’s written submission consists entirely of general legal principles that were used in non-refoulement cases with quotation from cases, bald assertions of procedural unfairness and reference to section 37ZT of the Immigration Ordinance.

7)  Our view

13.  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].

14.  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.

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