Re Rias Tuti Wagiran

CACV 207/2020

[2021] HKCA 974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 207 OF 2020

(ON APPEAL FROM HCAL NO. 2968 OF 2018)

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Before:  Hon Yeung VP, Chu and Barma JJA in Court

Date of Judgment:  13 July 2021

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J U D G M E N T

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The Court:

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 16 June 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 10 December 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 27 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Indonesia.  She last entered Hong Kong on 4 January 2011 to work as a foreign domestic helper.  She was convicted of the offence of making false representation to an Immigration Assistant and was sentenced to 6 months of imprisonment on 23 July 2011.  She lodged a torture claim on 29 August 2011 which was dismissed by the Director on 14 March 2012.  She then lodged a non-refoulement claim on 31 May 2013. 

3.The applicant’s claim was based on threats from a money lender in Indonesia.  The details of the applicant’s claim have been summarised by the judge at [5] of the CALL-1 Form.

4.By a Notice of Decision dated 27 April 2018 (“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] and the persecution risk[3].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 1 August 2018, the Board dismissed the appeal on 10 December 2018 (“Board’s Decision”).

6.At [43], [47] and [52] of the Board’s Decision, the Board found that the applicant is unlikely to be subject to any of the proscribed harms upon her return.  The Board was also satisfied at [49] that state protection would be available to the applicant and at [50] that internal relocation would be viable.

The Judge’s decision

7.The applicant filed a Form 86 on 24 December 2018 which contained no ground for seeking relief.  In the affirmation in support filed on the same day, the applicant only exhibited the relevant documents without giving any ground for judicial review.

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

9.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 [14] to [18] of the CALL-1 Form:

“14. As the Board did not accept that she was under any real risk if she returned to Indonesia, her claim will fail.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16. There is nothing to show that the Board had committed any error in its application of the law to her case.

17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

18. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

10.In the Notice of Appeal dated 22 June 2020 the applicant contended that:

“I want to challenge the decision.”

11.In the Supplemental Notice of Appeal filed on 17 August 2020, the applicant explained why it is unsafe for her to return.  She also submitted that there is nowhere else she can go because she had lost her parents.

12.The applicant failed to comply with the direction made by this Court on 29 August 2020 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.

13.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.

14.The hearing date on 15 December 2020 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

15.The applicant has failed to identify any error on the part of the judge.  She has therefore failed to advance any viable ground of appeal.  As for the ground based on the alleged risk of harm she may face upon her return and the inability to relocate to other parts of Indonesia, these matters have already been dealt with by the Board in its decision.  There is no evidence of any public law error in the Board’s Decision.

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

The applicant, unrepresented, acted in person.