RE HENNY SRI JARISTY

CACV 149/2023, [2023] HKCA 1248

on appeal from [2023] HKCFI 1185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 149 OF 2023

(ON APPEAL FROM HCAL 17/2020)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 4 May 2023 dismissing the applicant’s application for leave to apply for judicial review for want of prosecution. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 20 December 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 November 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Indonesia. She has worked in Hong Kong as a foreign domestic helper since 2005, but she overstayed and was arrested by the police on 29 July 2013. Thereafter, she lodged a non-refoulement claim on 30 June 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by her husband due to domestic and financial disputes. The details of the applicant’s claim have been summarised by the Board at [10] to [29] of the Board’s Decision. In gist, the applicant claims that she was the victim of repeated incidents of physical assault at the hands of her husband, as well as threats of death and harassment from him, from around 2007 to 2017. The threats and phone calls from her husband did not apparently stop despite their divorce in 2011. Essentially, she feels that if she were to return to Indonesia, her husband would be able to carry out his threats and her life and wellbeing would be in danger.

4.  By a Notice of Decision dated 8 November 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  The applicant appealed to the Board. After a hearing on 26 April 2019, the Board dismissed the appeal on 20 December 2019 by the Board’s Decision. The Board’s Decision covered all four grounds for non-refoulement protection. In dismissing her appeal, the Board found that the inconsistencies in the applicant’s account of domestic abuse were fatal to her case, as they rendered such claims incredible. Significantly, the Board did not accept as a matter of fact that the applicant was abused, threatened and assaulted by her husband, and therefore concluded that she had no sound basis for her alleged fears of returning to Indonesia.

The Judge’s decision

6.  The applicant filed a Form 86 on 2 January 2020 seeking to judicially review the Board’s Decision, setting out grounds of review which essentially complained of procedural unfairness and errors committed by the Board in reaching its Decision, but did not set out any particulars in respect of such alleged unfairness and errors.

7.  In the applicant’s supporting affirmation, she elaborated on her grounds by claiming, inter alia, that the Director and the Board in reaching their Decisions did not conduct “any proper inquiry” into her “situation”, that they relied on sources of news which were “hearsay”, and that the hearing before the Board was “unfair”. However, again, no particulars were given with regards to these contentions.

8.  On 16 January 2023, the applicant filed an affirmation stating:

“Affirmation for withdraw my leave to apply for judicial review as I married in Hong Kong and I am going to my home as I have no problem.”

9.  The Judge directed on 27 February 2023 that the applicant shall file a further affirmation with the court within 14 days, confirming that (i) her application to withdraw her Form 86 was made out of her own free will; (ii) she understood that if her application was approved, the Board’s Decision would remain in force; and (iii) if she failed to file this further affirmation, her application for leave to apply for judicial review may be determined on the papers and may be dismissed for want of prosecution. These directions were sent to the applicant at her last known address by the court’s letter dated 1 March 2023, which was not returned undelivered.

10.  The applicant failed to file a further affirmation as directed.

11.  Taking into consideration the circumstances of the case (including the Director’s and the Board’s Decisions, as well as other documents lodged with the court), the applicant’s affirmation filed on 16 January 2023 and her failure to respond to the matters as directed by the court, the Judge by his decision in the CALL-1 Form[5] dated 4 May 2023 dismissed the applicant’s application for leave to apply for judicial review for want of prosecution. His reasons were stated at [5] to [8] of the CALL-1 Form as follows:

“5. As at the date of this Form CALL-1, the Applicant had not responded. There is nothing to suggest that she has changed her address or has not received the correspondence. Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

Discussion and conclusion

6. Despite the Court’s directions, the Applicant declined to confirm that her withdrawal application is made under her own free will and that she understands the consequence of the withdrawal. The Court is skeptical of the reason for her non-refoulement claims, her application for leave to apply for judicial review as well as her withdrawal application. The Court does not consider it appropriate to allow her withdrawal application.

7. In the light of the Court’s direction, the Applicant must understand that if she does not respond, her leave application may be determined or dismissed for want of prosecution. Her withdrawal application also evinces a lack of intention to prosecute her leave application. The Court therefore considered it appropriate to dismiss her leave application for want of prosecution.

8. For the above reasons, the Applicant’s withdrawal application and leave application are refused.”

Grounds for appeal

12.  In the Notice of Appeal filed on 16 May 2023, the applicant essentially repeated her complaints against the Director and the Board as set out in her Form 86 and the supporting affirmation.

13.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals by letter dated 17 August 2023, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 5 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 lodgement 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. 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, 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 25 October 2023 was therefore vacated, and we will therefore proceed to determine the appeal on paper on the basis of the material already filed with the court.

Discussion

16.  The manner in which the applicant has prosecuted these proceedings is regrettable.

17.  From the background set out above, it is clear that the applicant has had notice of the Judge’s directions dated 27 February 2023, but declined to respond to the court’s enquiries which were made in relation to her own application to withdraw her application by her Form 86.

18.  We note that despite the applicant in her affirmation filed on 16 January 2023 claiming that there was “no problem” and that her intention was to return to Indonesia with her (new) husband, for reasons unknown and unexplained, she is now lodging an appeal against the Judge’s decision by way of the Notice of Appeal, in which it is indicated that she is still residing in Hong Kong at the same address as stated in her affirmation filed on 16 January 2023.

19.  As is clear from the procedural history recited above, the applicant’s application for leave to apply for judicial review was dismissed for want of prosecution, consequent upon her own application for withdrawal of the same (although that application was not granted). The applicant has advanced no grounds to suggest that the Judge was wrong to take that course. The present appeal is thus in our view hopeless and utterly devoid of merit.

20.  The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. The applicant has wholly failed to do so. Instead, the complaints in her Notice of Appeal are directed against the decisions of the Director and the Board.

21.  In any event, as this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

22.  In dismissing the applicant’s application for want of prosecution, the Judge considered all circumstances of this case, including the Board’s Decision, and found no basis for intervening. In our view, he was clearly correct to do so.

23.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision, and the applicant’s appeal is accordingly dismissed.