Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Re Zunariyah

Judgment Cited in 372 Precedent Map Related
Vincent
Judgment Date11 January 2018
Neutral Citation[2018] HKCA 14
Judgement NumberCACV195/2017
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV195/2017 RE ZUNARIYAH

CACV 195/2017

[2018] HKCA 14

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 195 OF 2017

(ON APPEAL FROM HCAL NO 139 of 2017)

__________________________

RE: ZUNARIYAH Applicant

__________________________

Before: Hon Cheung CJHC and Lam VP in Court
Date of Hearing: 9 January 2018
Date of Judgment: 11 January 2018

________________

JUDGMENT

________________

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

1. This is an appeal against the decision of Anthony Chan J on 18 August 2017 refusing leave to the applicant to apply for judicial review. The applicant came from Indonesia to work in Hong Kong as a foreign domestic helper from July 2004 to August 2011. In respect of her last contract of employment, she arrived in Hong Kong on 6 March 2011 and was granted permission to remain until 20 July 2012 or two weeks after the termination of her employment as foreign domestic helper. That employment was terminated early. She was granted extension to stay on visitor condition until 14 September 2011. Since 15 September 2011, she overstayed beyond the permission to remain here granted by the Director of Immigration. She surrendered herself on 22 September 2011.

2. She had formed a relationship with a man Abbas Raza [“AR”] in Hong Kong whilst working as a foreign domestic helper and they had a “nikah siri” ceremony on 2 May 2010 at a mosque in Hong Kong. The marriage was not registered. On 18 October 2011, she gave birth to a daughter for AR.

3. On 25 February 2014 she lodged a non-refoulement claim for herself and one for her daughter. The claims were based on threats from her former husband (whom she had divorced in 2007), her family members in Indonesia, and the religious group in her native village regarding her union with AR.

4. The Director decided against the claims on 12 November 2015. The decision covered BOR 3 risk, persecution risk and torture risk. By a supplemental decision of 20 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and her daughter and decided against them.

5. The applicant and her daughter appealed to the Torture Claims Appeal Board. After a hearing held on 7 November 2016, the Board dismissed the appeals on 15 March 2017.

6. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board of 15 March 2017. The Form 86 filed by the applicant on 13 April 2017 did not contain any grounds for seeking relief. In her affirmation of 13 April 2017, she simply deposed as follows:

“ I want to seek for judicial review for my claims after I dismissed my appeal by Torture Claims Appeal Board because I have problems with my family members, my ex-husband and also religious people in my place and I scared to go back home to Indonesia they will treats and prosecution me and my childs.”

7. The papers of the application were first placed before Patrick Li J as the judge designated to co-ordinate leave applications from unrepresented torture claim applicants. His Lordship noted that the applicant did not include the written decisions of the Director and the written decision of the Board in the papers lodged by her. The judge therefore called for those documents from the Director of Immigration to facilitate the processing of the application.

8. Though an application for leave to apply for judicial review is made ex parte, the judge processing the application has the power to call for relevant documents or initial response from a putative respondent, see Re Leung Kwok Hung HCAL 83 of 2012, 28 September 2012 at [33] to [45]; MST v Duty Lawyer Service CACV 179 of 2013, 3 July 2015. The extent to which the court needs to exercise such power is a matter of case management and the objective is to facilitate the court in the efficient and effective performance of its filtering role in a leave application.

9. In the present context, the Form 86 and supporting affirmation of the applicant plainly did not give adequate information to the court. P Li J had to obtain copies of the decisions in order to process the leave application. One option was to direct the applicant to produce the same. Bearing in mind that the applicant was unrepresented with limited resources, there could be further delays. In such circumstances, it was legitimate for the judge to request such documents...

To continue reading

Request your trial
372 cases
  • Re Shrestha Santosh Kumar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 6 September 2018
    ...judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board, see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKC......
  • Re Waryam Singh
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 24 September 2018
    ...or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 11. The a......
  • Re Nadeem Asif
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 21 September 2018
    ...2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176. 13. T......
  • Re Akhtar Kamran
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 28 September 2018
    ...judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA......
    • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT