Re Yensirohika

CACV 540/2021

[2022] HKCA 1380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 540 OF 2021

(ON APPEAL FROM HCAL NO 2831 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  21 September 2022

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J U D G M E N T

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

1.This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 22 November 2021, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 3445).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 19 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 28 February 2018 (“the Director’s Decision”)  rejecting her non-refoulement claim.

3.The appeal was listed to be heard on 21 February 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 24 January 2022 and was warned that if she failed to do so, she would be deemed to have waived her right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 28 December 2021.  However, the applicant did not lodge any skeleton argument in support of her appeal.

4.The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the Court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  We have proceeded to consider this appeal on paper based on the available materials.

Background

6.The applicant is a national of Indonesia.  She arrived in Hong Kong on 28 March 2014 and was permitted to remain as a domestic helper until 28 March 2016.  Upon completion of her employment contract on 28 March 2016, she did not depart as required and overstayed since 29 March 2016.  On 20 June 2016, she was arrested by the police in Hong Kong for overstaying and was transferred to the Immigration Department for investigation on 22 June 2016.  On 15 March 2017, she was again arrested by the Immigration Department for breach of condition of stay by taking up unapproved employment.

7.By way of written representations dated 21 March 2017, 26 March 2017 and 5 April 2017, she raised a non-refoulement claim on the basis that she would be harmed or killed by her mother due to refusal of her request to marry a Dayak man and she would be killed by her ex-husband if she returned to Indonesia due to her refusal to give him money.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] of the Leave Decision.

8.By a Notice of Decision dated 28 February 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated.

9.On 19 March 2018, the applicant appealed against the Director’s Decision to the Board.  The applicant attended a hearing before the Board on 17 August 2018 and gave evidence with the assistance of an interpreter qualified in the Indonesian and English languages.  The Board dismissed her appeal on 19 November 2018.  The Board considered that she was not a witness of truth and her claims for non-refoulement protection were not credible.  Having assessed the evidence, the Board rejected her claims and further found that there would not be a real risk that the applicant would face any of the proscribed forms of harm should she return to Indonesia. Accordingly, the Board concluded that the applicant failed to substantiate her claim on the applicable grounds and dismissed her appeal.

The Leave Decision

10.On 11 December 2018, the applicant filed her Form 86 and supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  However, she did not put forward any ground of review.

11.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [12] - [18] of the Leave Decision:

“12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.   The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.   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.’

15.   The Board has conducted a rather comprehensive assessment of the applicant’s evidence and has given its reasons for its findings. There is no valid reason from the applicant to challenge its Decision.

16.   The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

18.   I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The Appeal

12.On 3 December 2021, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision.  In her Notice of Appeal, she only stated that she wanted to challenge the Leave Decision.  She did not provide any ground of appeal or identify any error in the Leave Decision.

13.As mentioned above, contrary to the directions of this Court dated 28 December 2021, the applicant did not lodge any written submissions.

Discussion

14.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

16.Nowhere in her Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision.  As such, there is simply no viable ground of appeal and the appeal must fail on this basis alone.

17.For the reasons given above, the applicant’s appeal is a non-starter and has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person