Re Sumiati

CACV 379/2023, [2024] HKCA 153

On Appeal from [2023] HKCFI 2806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 379 OF 2023

(ON APPEAL FROM HCAL 1143 OF 2019)

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J U D G M E N T

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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 K W Lung (“Judge”) on 14 November 2023 (“Judge’s Decision”), refusing to grant an extension of time for the applicant to apply 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 1 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her request to re-open her non-refoulement claim (“NRF Claim”) by a notice of decision dated 14 June 2018 (“Director’s Decision”).

Director’s Decision

2.The applicant had lodged a NRF Claim. By letters dated 15 December 2016 and 5 January 2017, the Immigration Department (“Department”) required her to complete and return the non-refoulement claim form (“NCF”) on or before 12 January 2017. On 12 January 2017, the Duty Lawyer Service (“DLS”) informed the Department that they had not received any instructions from the applicant and thus could not act for her any further. As the applicant did not return the completed NCF nor did she apply for an extension of time, the Department treated the NRF Claim as withdrawn on 13 January 2017.

3.It was not until 4 June 2018 that the applicant wrote to the Department to request to re-open the NRF Claim. The Department conducted an interview with the applicant on 12 June 2018. The Director considered that the applicant had failed to provide sufficient evidence in writing to show that she had not been able to return the completed NCF as required due to circumstances beyond her control. Thus, the Director decided not to re-open the NRF Claim on 14 June 2018.

Appeal to Board and Board’s Decision

4.The applicant appealed against the Director’s Decision to the Board. Her appeal was determined by the Board on paper without a hearing pursuant to s 12 of Schedule 1A to the Immigration Ordinance (Cap 115).

5.The Board was not persuaded by the applicant’s explanation for her failure to submit a completed NCF as she had legal assistance of the DLS at the material times and there was also no indication that she had ever attempted to get assistance to complete and return the form after the expiry of the deadline. The Board found that the applicant had not provided sufficient evidence to support her application to re-open the NRF Claim and that the Director was justified to refuse her application. The Board dismissed the appeal on 1 November 2018.

Application for leave for judicial review and Judge’s Decision

6.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1143/2019 on 30 April 2019 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decision. The application was made out of time. The applicant only stated in her affirmation in support that she does not want to return to her country, without stating any grounds for the proposed judicial review.

7.The applicant did not request for an oral hearing. After considering the material before him, the Judge refused to grant an extension of time for the applicant to seek leave to apply for judicial review of the Board’s Decision for the reasons set out at [17] – [19] of the Judge’s Decision:

“17. The Board, for the reasons stated in paragraphs 8 & 9, supra, found that the applicant has no good reason in support of her application for re-opening of her claim.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision.

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

Appeal to the Court of Appeal - grounds of appeal

8.By the Notice of Appeal filed herein on 20 November 2023, the applicant appealed against the Judge’s Decision on the grounds that:

(1)  “Ground 1”: The applicant will face hardship if she is to return to her home country.

(2)  “Ground 2”: The Board has made groundless speculations as a result of relying on sources of news that were not officially recognised or were simply hearsay and cases that were outdated.

9.In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals by letter dated 6 December 2023, 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. The hearing date scheduled on 30 January 2024 was thus vacated on 3 January 2024.

10.It has later come to the court’s attention that the notice of hearing dated 11 December 2023 was returned by the post office and that the applicant has been detained in the Castle Peak Bay Immigration Centre (“Centre”).

11.On 5 January 2024, Kwan VP directed that the hearing scheduled on 30 January 2024 be restored and that the time for the applicant to lodge skeleton submissions be extended to 23 January 2024. It was also directed that the applicant shall be deemed to waive her right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper if she fails to comply with the said directions. The letter informing the applicant of the said directions was sent to both the address previously provided by the applicant and the Centre on 5 January 2024.

12.The applicant did not lodge any skeleton submissions as directed.

13.The requirement for the lodgment of skeleton submission in a civil appeal is prescribed by Practice Direction 4.1. The filing and service of skeleton submission 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 submission. Non-compliance is treated as the abandonment of the right to an oral hearing.

14.The hearing date on 30 January 2024 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.

Discussion

15.The role of the court in judicial review is not to re-assess the non-refoulement claim. The court at first instance will scrutinise the Board’s decisions, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. An appeal against a refusal of leave to apply for judicial review in a non-refoulement claim is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) 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 shall interfere if and only if the judge had erred in law or failed to take into account a relevant matter or was otherwise plainly wrong. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.Due to the deemed withdrawal of the NRF Claim, there is no finding as to risk of harm. Ground 1 therefore completely misses the point that what we are concerned with at this point is whether the Judge erred in not granting the applicant leave to apply for judicial review of the Board’s Decision which dismissed the applicant’s appeal against the Director’s Decision not to re-open the NRF Claim due to the applicant’s failure to complete and return the NCF.

17.The Board’s Decision in the present case was not based on any news, hearsay evidence or cases as complained by the applicant. The applicant’s complaint against the Board is totally without basis. The applicant also failed to 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. The Judge’s reasoning for the refusal is justified. Ground 2 also fails.

Disposition

18.For the above reasons, we see no basis to interfere with the Judge’s Decision. The appeal should be, and is, dismissed accordingly.