RE INDAH DWI WINARSIH

CACV 541/2021

[2022] HKCA 1552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 541 OF 2021

(ON APPEAL FROM HCAL NO 513 OF 2019)

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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 30 November 2021, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 3413).

2.  The intended judicial review is to challenge against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 19 February 2019 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 24 November 2017 (“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 last arrived in Hong Kong on 19 August 2011 to work as a foreign domestic helper and was permitted to remain until 22 June 2013 or two weeks after her employment contract was terminated, whichever was earlier.  Her contract terminated prematurely on 28 April 2013 and she did not depart as required and has overstayed since 13 May 2013.  On 12 September 2013, she was found to have taken up unapproved employment and was arrested and convicted and sentenced to two months’ imprisonment on 17 October 2013.  By the written representations dated 3 March 2014, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a loan shark and his companions in relation to her late father’s debt.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] of the Leave Decision.

7.  By a Notice of Decision dated 24 November 2017, 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.

8.  On 6 December 2017, the applicant appealed against the Director’s Decision to the Board.  She attended the hearing before the Board on 26 November 2018 and gave evidence with the assistance of an interpreter qualified in the Indonesian and English languages.  The Board dismissed her appeal on 19 February 2019.  The Board found that she was not a credible witness and that the allegations in support of the claim that her father was killed by the loan shark or his men were significantly inconsistent.  The Board also found her evidence relating to the alleged loan to be vague and unconvincing.  Having assessed all the evidence, the Board did not accept that the applicant was of any adverse interest to the loan shark as claimed.  Accordingly, the Board concluded that she failed to substantiate her claim on the applicable grounds and dismissed her appeal.

The Leave Decision

9.  On 22 February 2019, 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 in her Form 86.  In her supporting affirmation, she only stated that the Immigration Department disregarded her dangerous situation.

10.  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 Decision 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.… …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.  She has submitted no valid ground to assist her application.

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.  There is no evidence that shows that the applicant has any realistic prospect of success in her intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for her intended judicial review.  Accordingly, I dismiss her application.”

The Appeal

11.  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:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

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

Discussion

13.  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].

14.  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.

15.  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.

16.  Further and in any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge at [16] of the Leave Decision, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

17.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.