Re Sultoniah Bukhori

CACV 375/2021

[2021] HKCA 1714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 375 OF 2021

(ON APPEAL FROM HCAL 636 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 To (“Judge”) on 19 July 2021 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 23 April 2021 (“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”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 12 January 2021 (“Director’s Decision”).

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 43, is a fear of being seriously harmed or killed by a loan shark with gangster connection called Hotman Muhamad Arif (“HMA”) due to her inability or failure to repay a loan.

3.For a detailed summary of the circumstances giving rise to such fear, see paragraph 6 of the Director’s Decision, paragraphs 4 to 7 of the Board’s Decision and [6] of the Judge’s Decision embodied in the Form CALL-1 dated 19 July 2021, [2021] HKCFI 2086 (“Form CALL-1”).

4.Briefly:

(1)  In October 2019, the applicant borrowed 150 million IDR (“Loan”) from HMA.

(2)  They agreed that she could repay the Loan after she returned to Hong Kong to work as a domestic helper.

(3)  In early December 2019, the applicant flew to Hong Kong.  Before she did so, she had an amicable talk with HMA who did not hurt the applicant or her family.

(4)  However, the applicant was then taking care of her baby who was borne in Hong Kong so that she was unable to find work as a domestic helper.  Without any income, she could not make any repayment of the Loan.

(5)  She began to receive threatening WhatsApp calls (even death threats against her and her family) from HMA every other day and then daily since March 2020.

(6)  HMA also sent his men to the applicant’s mother’s house 3 to 4 times a week to demand for repayment of the Loan.

(7)  The situation kept escalating.  The applicant was so afraid that she changed her phone number.

Overstay in Hong Kong and lodgment of NRF Claim

5.The applicant last arrived in Hong Kong on 6 December 2019.  She was permitted to remain in Hong Kong until 19 September 2020 after the premature termination of her employment contract on 5 September 2020.  Her visa was subsequently extended to 18 October 2020.  However, on 24 September 2020, the applicant was convicted of 2 counts of immigration offences and sentenced to 4 months’ imprisonment.  On 11 December 2020, the applicant was released from prison and transferred to detention by the Immigration Department.

6.The applicant raised the NRF Claim by written representation dated 12 October 2020 and completed a Non-Refoulement Claim Form dated 21 December 2020 (“NCF”), with the assistance of the Duty Lawyer Service.

Director’s Decision

7.After considering the information provided by the applicant in the NCF and at the screening interview on 11 January 2021, the Director found the NRF Claim 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 HMA was low.  There is no evidence to show that HMA had a real or strong intention to harm or kill the applicant, or that he had any intention or the resource to search for the applicant everywhere in Indonesia outside of her hometown of Lampung.

(2) Second, the applicant did not immediately seek non-refoulement protection upon her arrival in Hong Kong in December 2019.  She waited until October 2020 to do so.  The fact that the applicant did not take the first opportunity to seek assistance was inconsistent with the attitude of a person genuinely fearing for her life.

(3) Third, relevant objective country of origin information (COI) suggested that the Indonesian government has taken steps to improve the effectiveness of the police and that reasonable state protection would be available to the applicant in her home country.  In the past, it was the applicant herself who chose not to seek assistance from the police or other authorities in Indonesia as she considered them to be corrupt.

(4) Fourth, the perceived risk (if any) can be reduced by relocation to other areas or districts in Indonesia such as Jakarta or Bali.

Appeal to Board and Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  The Board conducted a rehearing of the NRF Claim on 31 March 2021. The applicant attended to give evidence and to answer the Board’s questions.

9.The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.  In particular, the Board found inconsistencies, and exaggeration of the risk and danger associated with HMA, in the applicant’s evidence.  The Board also reached the same conclusions as the Director regarding the availability of state protection and reasonable internal relocation options.

Application for leave for judicial review and Judge’s Decision

10.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 636/2021 on 6 May 2021, the applicant applied for judicial review of the Board’s Decision on the ground that the Director’s Decision and the Board’s Decision were wrong, unfair and Wednesbury unreasonable.

11.After an oral hearing in open court attended by the applicant, the Judge dismissed the application for the reasons set out in [13] to [15] of the Form CALL-1:

“13. In her notice of application for leave to apply for judicial review, the Applicant repeated her reliance on the NCF and her right to life under BOR 2. She alleged that the Decision is not fair or reasonable in the Wednesbury sense. But she gave no particulars.

14. At the hearing, attempts were made to solicit from her the grounds of her application and the basis to support her allegation that the Decision is unreasonable and unfair in the Wednesbury sense. She said she did not understand. Obviously, the grounds were prepared by someone on her behalf without proper instruction. She said she could not return to Indonesia and she wanted to get protection for her and her child. She admitted that she had the services of the Duty Lawyer and interpreter in presenting her case before the immigration officer and that she had the assistance of an interpreter in presenting her appeal before the Board. She accepted there was no procedural irregularity in the appeal.

15. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to Indonesia.  In effect, she is seeking to challenge the Board’s finding of fact that she and her child would not face any real harm or risk if they are returned to Indonesia and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  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 those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  The Applicant’s claim was not reasonable arguable.  There was no realistic prospect of success.”

Appeal to Court of Appeal - grounds of appeal

12.By the 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 her supporting affirmation, the applicant merely stated it was dangerous for her to return to Indonesia.

13.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.

14.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.

15.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

16.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.

17.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 those allegedly giving rise to the 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)].

18.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 of the assertion that 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.

19.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)].

20.The applicant did not in the notice of appeal or the accompanying affirmation identify any 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. 

21.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.

22.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

23.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