Re Srilestari

CACV 111/2018

[2018] HKCA 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 111OF 2018

(ON APPEAL FROM HCAL 431/2017)

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Before: Hon Cheung CJHC, Lam VP and Chu JA in Court

Date of Judgment: 7 August 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 Deputy High Court Judge Woodcock on 11 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is an Indonesian national. She came to Hong Kong on 28 December 2014 to work as a foreign domestic helper. Her contract was prematurely terminated on 22 January 2015 but she did not depart on or before 5 February 2015 in accordance with the permission for stay granted by the Director of Immigration to her. She surrendered to the Immigration Department on 16 April 2015. On 1 June 2015, she lodged a non-refoulement claim. The basis of her claim was that if she were to return to Indonesia she would be harmed or killed by her parents because she refused to accept an arranged marriage and instead she married a Pakistani man in Hong Kong.

2.The Director decided against the claim on 19 November 2015.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a Further Decision of 24 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against her.

3.The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 18 January 2017, the Board dismissed the appeal on 15 February 2017 (“the Board’s Decision”).

4.The intended judicial review was in respect of the Board’s Decision only.  The Form 86 filed by the applicant on 20 July 2017 did not give any grounds.

5.In her affirmation of 20 July 2017, she said she was not satisfied with the Board’s Decision.  She mentioned she had three children and she did not “register” at the Indonesian consulate “so that matter take time”.  She alluded generally to danger to her life in Indonesia and an unspecified case of her children and her husband. 

6.After hearing the applicant on 15 December 2017 and reviewing the materials carefully, the judge refused to grant leave.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Board, she gave the following reasons for refusing leave at [12] to [14] of the CALL-1 Form of 11 April 2018:

“ 12. The applicant had no grounds in her affirmation and was given an opportunity in open court to make submissions. Her only submission was a desire that her claim and her husband’s claim be considered/joined together. The court tried to ascertain from her (and her husband who accompanied her to court) if they had made this application to the Immigration Department or approached the Immigration Department with this request but could make no sense of the explanation offered. In any event, it was not applicable or relevant to this application or the TCAB decision against this applicant.

13. I have to consider each application and decision with rigourous examination and anxious scrutiny. Even though I have said this application only applies to the TCAB decision, I have considered the Director’s decision and found no error in the decision making process. I sympathise with the predicament the applicant finds herself in with a young family in Hong Kong with a husband in the same situation as her but from another country but she has not put forward any grounds to show that the adjudicator has made any error of law in analysing the applicant’s claim under the applicable grounds. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applied to the decision of the Director.

14. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

7.In the notice of appeal of 11 April 2018, the applicant said that she was worried about the threats and danger she was facing and the interpreter may not fully grasp the situation.

8.On 24 May 2018, when the date for hearing this appeal was fixed, the Court also made an unless order requiring the applicant to lodge skeleton submissions by 3 July 2018. The applicant did not comply with the unless order of 24 May 2018. As no skeleton argument was lodged, the Court deemed the applicant as waiving her right to an oral hearing.

9.The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  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 by the judges and the litigants.  Non-compliance with such requirement substantially impairs the effective management of the oral hearing. 

10.The Court does not permit unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on 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.The hearing date of 31 July 2018 was therefore vacated pursuant to the unless order of 24 May 2018 when the applicant failed to lodge skeleton submissions by 3 July 2018.   

12.We now process the appeal on the basis of the materials already lodged by the applicant.  

13.Having considered the materials before us, we agree with the judge’s observations. 

14.We agree with the observation by the learned judge that the applicant was late in her Judicial Review leave application and that time should not be extended:

“ 3. The applicant has failed to file her Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4. She is, in fact, just over two months late. Her notice of application does not set out the reasons for the delay as it should. She had no explanation during the hearing why it was delayed and late, she asked for an adjournment to give her time to give the court a reason for the delay which I did not consider necessary.

4. I have considered the legal principles for granting an extension of time for judicial review. The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

5. The delay is not insignificant and there is no good reason for extending time. This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.”

15.In the recent decision of this Court in MI v Secretary for Security [2018] HKCA 419, it was held that in judicial review cases brought outside the three-month time limit where the judge refused to extend time, an applicant should obtain leave under Section 14AA of the High Court Ordinance before an appeal can be brought.

16.As there was no explanation for the delay and, as explained below, the appeal has no merit, we refuse to grant leave under Section 14AA. 

17.Further, the primary contention of the applicant is based on purported threat to her in Indonesia.  The Board has already assessed that risk at §§3, 18 and 29 and concluded that because the applicant’s refusal to the arranged marriage occurred in 2009, her parents are unlikely to pose any threat to her so many years after this event.  There is no impediment to the applicant seeking protection from the state. 

18.In our view, the applicant fails to show that the Board committed any error in arriving at this conclusion.

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

20.For these reasons, we do not see any prospect of success in the intended application for judicial review.

21.As leave had been refused under Section 14AA, the appeal should be struck out and dismissed accordingly.

The applicant acting in person