Re Nur Febri Prihatini

CACV 374/2021

[2021] HKCA 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 374 OF 2021

(ON APPEAL FROM HCAL 221 OF 2021)

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Before:  Hon Barma JA and Lisa Wong J in Court

Date of Judgment:  15 November 2021

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal against the order made by Deputy High Court Judge P Li (“Judge”) on 27 July 2021 (“Judge’s Decision”) refusing the abovenamed applicant extension of time for an application for leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 12 March 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 14 August 2015 and a notice of further decision dated 23 June 2017 (“Director’s Decisions” collectively).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of Indonesia now aged about 38, is a fear of being killed or subjected to ill-treatment by her husband and/or his friends for (1) being lesbian and (2) her relationship with her girlfriend (“Danil”).

3.For a detailed summary of the circumstances giving rise to such fear, see paragraph 6 of the Director’s 1^st Decision, paragraph 36 of the Board’s Decision and [3] to [5] of the Judge’s Decision embodied in the Form CALL-1 dated 27 July 2021, [2021] HKCFI 2187 (“Form CALL-1”).

4.Briefly:

(1)  The applicant is married with a son.

(2)  She was on good terms with her husband prior to leaving Indonesia for Hong Kong on 15 July 2010.

(3)  She became aware of her homosexuality whilst working in Hong Kong.

(4)  In 2011, she met Danil.  Her husband found out about her relationship with Danil in the same year.

(5)  He threatened to kill the applicant if she remained a lesbian or did not leave Danil when she returned to Indonesia.  Nevertheless, the applicant made it clear that she could not leave Danil.

(6)  Thereafter, the applicant’s husband tried to call her once a week but the applicant did not pick up the phone save for the first call by which her husband threatened to kill her if she returned to Indonesia.  He also sent the applicant text messages that contained death threats.

Arrest in Hong Kong and lodgment of NRF Claim

5.The applicant last arrived in Hong Kong on 3 October 2014 for employment as a domestic worker under a contract expiring on 23 July 2016. However, on 29 November 2014, she was arrested by the police for theft.  Her employment contract was terminated on the same day.  She was subsequently convicted of 2 counts of theft and sentenced to 4 months’ imprisonment.  On 20 March 2015, the applicant was released from prison and transferred to detention by the Immigration Department.

6.The applicant raised the NRF Claim by written representations dated 14, 16 and 21 January 2015 and completed a Non-Refoulement Claim Form (“NCF”) on 27 May 2015, with the assistance of the Duty Lawyer Service.

Director’s Decisions

7.After considering the information provided by the applicant in the NCF and at the screening interview on 10 August 2015, by the Director’s Decisions, the NRF Claim was found to be unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the risk of harm from the applicant’s husband or his friends was low.

(2) Second, relevant objective country of origin information (COI) indicated the availability of reasonable state protection, which would lower or even negate the risk (if any).  

(3) Third, the perceived risk (if any) can be further reduced by internal relocation to other parts of Indonesia such as Bogor, Depok, Semarang, Makassar or Surabaya, where there are no local laws targeting homosexual women.

Appeal to Board and Board’s Decision

8.The applicant appealed against the Director’s Decisions to the Board.  The Board conducted rehearings of the NRF Claim on 20 April 2016 and 22 November 2017, from both of which the applicant was absent.

9.The Board therefore determined the appeal on paper.  In the absence of oral evidence from the applicant, the Board was unable to determine whether the allegations made in support of the NRF Claim were credible or whether there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she returned to Indonesia. 

10.The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.

Application for leave for judicial review and Judge’s Decision

11.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 221/2021 on 8 February 2021, the applicant applied for judicial review of the Board’s Decision on the ground that the Director’s Decisions and the Board’s Decision were wrong, unfair and Wednesbury unreasonable.

12.The applicant filed the Form 86 out of time for about 20 months but failed to apply for an extension of time.  

13.After hearing the applicant in open court on 1 June 2021, the Judge considered the applicant’s delay to be inexcusable and the intended judicial review not reasonably arguable.  The Judge accordingly refused to extend time for the applicant to apply for leave to apply for judicial review and dismissed the application for leave to apply for judicial review for the reasons set out in [14] to [19] of the Form CALL-1.

“14. The applicant was out of time in filing the leave application by about 20 months. She should have applied for extension of time. She did not provide any explanation for the delay which was substantial.

15. In considering whether there is any good reason for the delay, I have considered factors including the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted.

16. An oral hearing was held on 1/6/2021 upon the request of the applicant. She had been released from CIC. She had nothing further to update. She was still scared to go home.

17. In response to the questions from this court, she explained that she had received the notice of hearing for the 1^st hearing fixed on 20/4/2016 before the TCAB. She did not attend as she was afraid she might be sent back to Indonesia. As to the 2^nd hearing on 22/11/2017 before the TCAB, she had moved out of the address already. She did not inform the Director of the change of address.

18. The applicant deliberately absent herself from the 1^st hearing. She did not border to explain. For the 2^nd hearing, the applicant had not reported the change of address to the Director or the TCAB in accordance with s.37ZA (2) of the Immigration Ordinance. She must bear the consequence. Given this information, I am satisfied that the adjudicator was right to determine the appeal on paper.

19. Having considered the evidence, I agree with the reasons of the adjudicator. I find no error of law and procedure in relation to the TCAB decision dated 12/3/2019. The decision is reasonable.” (original footnote)

Appeal to Court of Appeal – paper disposal for failure to lodge written submission

14.By a notice of appeal filed herein on 2 August 2021, the applicant appealed against the Judge’s Decision on the ground that it was wrong.  In the supporting affirmation, the applicant merely stated it was dangerous for her to return to Indonesia.

15.In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 19 August 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

16.The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.

17.The hearing date on 1 November 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the documents already filed with the court.

Discussion

18.In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.

19.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including the matters allegedly giving rise to the non-refoulement claim, the risk of harm, the availability of state protection and the viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

20.The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant did not condescend to any particulars as to how the Board’s Decision was wrong, unfair or Wednesbury unreasonable.  That being the case, the application for judicial review of the Board’s Decision was hopeless and leave was rightly refused.

21.Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2) & (4)].

22.The applicant did not in the notice of appeal or the supporting affirmation identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

23.It is grossly insufficient for the applicant to just assert that the Judge’s Decision was wrong.  The much-repeated statement that the applicant’s life would be in danger in Indonesia, having been dismissed by the Director and the Board, does not assist the applicant either.

24.In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

25.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.   

The applicant was unrepresented and absent