Re Indah Dwi Lestari

CACV 424/2020

[2021] HKCA 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 424 OF 2020

(ON APPEAL FROM HCAL 792/2018)

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Before:  Hon Barma JA and L Wong J in Court

Date of Judgment: 4 June 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 31 August 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 9 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She entered Hong Kong on 18 April 2011 to work as a foreign domestic helper.  Her contract was terminated prematurely on 24 August 2012 but she did not leave within the requisite period.  She overstayed and was arrested on 24 November 2012.  She lodged a non-refoulement claim in around March 2014 but she did not pursue that claim for some time.  She applied to resume her claim on 13 April 2017.

3.The applicant’s claim was based on threats from her maternal uncle who was alleged to have molested her and attempted to rape her on several occasions.  The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.

4.By a Notice of Decision dated 27 July 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 26 October 2017, the Board dismissed the appeal on 9 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [52] of the Board’s Decision, the Board accepted that the maternal uncle of the applicant might have attempted to rape her in the past but found that he is unlikely to continue to have the same interest in her upon her return.  The Board was also satisfied at [55] that state protection would be available for the applicant and at [60] that internal relocation would be viable.

The judge’s decision

7.The applicant filed a Form 86 on 7 May 2018 which contained no ground for seeking relief.

8.In her affirmation in support of the leave application filed on 7 May 2018, the applicant deposed that:

“I am inform to court I am married in Hong Kong my husband Hong Kong people could you please give to me a time I am waiting my visa from immigration. I also attached my husband documents”

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [15] of the CALL-1 Form:

“11. On 7 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that she has married a husband in Hong Kong and asked for time for her to get her visa from the Immigration Department without putting forward any valid or proper grounds for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision, I do not find any reasonably arguable basis for her to challenge the finding of the Board.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm from her maternal uncle in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Grounds for appeal

11.In the Notice of Appeal filed on 3 September 2020, the applicant stated that:

“I want to challenge the decision dated 31 August 2020”

12.In the Supplemental Notice of Appeal dated 9 February 2021, the applicant submitted that she did not know how to seek protection.  She recalled an event in around 2010 when her maternal uncle molested her and threatened to kill her if she refused to marry him and claimed that it is unsafe for her to return.

13.The applicant agreed by a letter of 3 September 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this Court on 3 March 2021 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

14.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 impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  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.

15.The hearing date on 24 May 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

16.The applicant did not identify in her Notice of Appeal or Supplementary Notice of Appeal any ground based on an error in the decision by the judge.  The applicant has therefore failed to advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review. In any event, having examined the judge’s decision, we can see no error in it.

17.As for the event alleged to have occurred in 2010, as described in the Supplemental Notice of Appeal, we note that this had already been considered by the Board ([33] of the Board’s Decision) but the Board ultimately dismissed her claim for protection for the reasons identified at [6] above.  It is a well-established principle that an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The court is not required to come to a view on the threats from her maternal uncle, as the primary decision maker is the Board.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. 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] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  No such grounds have been shown.  This ground is therefore not a valid ground of appeal.

18.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person