Re Manjit Kaur

CACV 55/2018

[2018] HKCA 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 55 OF 2018

(ON APPEAL FROM HCAL NO 643 OF 2017)

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Before: Hon Lam VP and Yuen JA in Court

Date of Judgment: 4 May 2018

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JUDGMENT

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

1.This is an appeal against the decision of Campbell-Moffat J on ­2 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is an Indian national. She arrived in Hong Kong from India via Shenzhen on 12 January 2014. Her permission to remain here expired on 26 January 2014. Since then she overstayed illegally. She made a request for asylum to the UNHCR on 27 January 2014. She surrendered to the Department of Immigration on 10 February 2014. On 10 March 2014, she submitted a non-refoulement (“NRF”) claim by way of written representation. On 28 August 2015, she submitted her NRF claim form.

2.According to the applicant, in June 2011 she accepted a marriage proposal from a man (G) in India but G’s family opposed. They threatened to kill her if she and G married.  G left for Hong Kong in August 2013.  G’s family pressured the applicant’s family into arranging a marriage between the applicant and another Indian man (S).  The applicant and S married in September 2013.  Upon discovering that the applicant maintained contact over the phone with G, S beat the applicant with a wooden rod.  After the applicant divorced S in around November 2013, S threatened to kill the applicant.  Fearing for her life, the applicant fled to Hong Kong on 12 January 2014. 

3.The Director decided against the claims on 30 December 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”).  By a Further Decision of 9 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against her.

4.The applicant appealed to the Torture Claims Appeal Board.  After the hearings held on 23 January 2017 and 14 February 2017, the Board dismissed the appeal on 23 June 2017 (“the Board’s Decision”).

5.The intended judicial review was in respect of the Board’s Decision only.  The Form 86 filed by the applicant on 20 September 2017 did not set out any ground.

6.In her affirmation of 20 September 2017, she said the following:

“ I am not satisfied with the decision given by [the Board]. I can’t go back to my country at this moment. Please help me to stay in Hong Kong until my problem will be solved”.

7.The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decision of the Board, she gave the following reasons in refusing leave at [9] to [11] of the CALL-1 Form of 2 March 2018:

“ 9. The Applicant set out no grounds of review. The sole complaint of the Applicant is that she is not satisfied with the decision of the Adjudicator. This is not a basis for judicial review and the application for leave should fail in limine.

10. Despite the fact that the Applicant has submitted no grounds of review, I have considered the papers before me carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The Director and Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable regardless of her declaration that she no longer fears a return to India.

11. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review (if she had attempted to do so) and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

8.In the notice of appeal of 5 March 2018, the applicant said:

“ I can’t go back to my country at this moment because my problem is not yet solved. I hope you will help me to stay in Hong Kong until my problem will solved.”

9.The applicant agreed by a letter of 5 March 2018 that the appeal can be heard by two judges.

10.The applicant did not comply with the order of this Court on 21 March 2018 to lodge a skeleton argument by 20 April 2018.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impaired the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal. Nowadays, this Court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this Court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

11.In the circumstances, the applicant is deemed to have waived her right to an oral hearing.  Pursuant to the terms of that order of 21 March 2018, the hearing date of 4 May 2018 was vacated and the appeal is to be processed on papers based on materials already lodged. 

12.Having considered the notice of appeal in light of the materials before us, we agree with the judge’s observations.

13.In both the Form 86 and the Notice of Appeal, the applicant failed to identify any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.

14.We agree with the judge that leave to apply for judicial review should not be granted.

15.For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.

The applicant acting in person