RE ORENSE MARIAN MASANGKAY

CACV 300/2020

[2021] HKCA 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 300 OF 2020

(ON APPEAL FROM HCAL NO. 1814 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 10 July 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”)  dated 3 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 9 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong on 9 December 2011 to work as a foreign domestic helper.  After her employment contract was prematurely terminated, she was granted extension of stay as a visitor.  She travelled between Hong Kong and Macau and last entered Hong Kong on 12 November 2013.  She was permitted to remain as a visitor until 26 November 2013.  She overstayed and was arrested on 22 November 2016.  She was convicted of two offences on 17 March 2017 and was sentenced to two months of imprisonment.  She lodged a non-refoulement claim on 14 February 2017.

3.  The applicant’s claim was based on threats from her husband because of her extramarital affair and pregnancy.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 August 2017 (“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 Torture Claims Appeal Board.  After a hearing on 17 and 23 May 2018, the Board dismissed the appeal on 3 July 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [78] of the Board’s Decision, the Board found that the past ill treatment by the applicant’s husband, although serious, was not enough to reach the minimum level of severity.  The Board also noted her conversion to Islam did not by itself put her at any risk of harm other than estrangement from her family.  The Board concluded that the applicant was not at risk from any of the proscribed harms upon her return.  The Board was also satisfied at [81] that state protection would be available to the applicant and at [88] that internal relocation would be viable.

The Judge’s decision

7.  The applicant filed a Form 86 on 3 September 2018 which contained no ground for seeking relief.

8.  In her affirmation in support of the leave application dated 3 September 2018, the applicant deposed that:

“…I do not agree with adjudicator’s decision dated 3 July 2018.  My life in danger.  I cannot go back to my homeland.  All the details in attached documents relief sought and other attached document exhibit “A” to the 204 pages.”

9.  In the document entitled “Seeking Relief Under Non-Refoulement protection in Hong Kong” exhibited to her affirmation as Exhibit A, the applicant recounted the events giving rise to her claim.  She is concerned that her extra-marital affair and conversion to Islam will cause her family to disown her.  She claims that she will not be able to support herself and her baby if she returns to the Philippines.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [18] of the CALL-1 Form:

“13. The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and she was able to read Board’s Decision herself.

14. I put the Board’s findings to her and asked her if she had any comments on them. She said that she had told the truth to the Adjudicator.

15. 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.”

16. There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

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

CONCLUSION

18.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

11.  In the Notice of Appeal dated 24 July 2020, the applicant contended that:

“My case is that the judge’s direction was wrong in law and I was not given sufficient opportunity of hearing my claim. I continue to stand against the Director’s Decision of claiming my risk is not sufficient.”

12.  The applicant agreed by a letter dated 24 July 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this Court on 10 November 2020 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process. The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement 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 an oral 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 with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 1 February 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

15.  In the Notice of Appeal, the applicant complained that the judge gave a direction that was wrong in law without identifying the legal error.  This ground lacks particulars and is therefore bound to fail.

16.  The applicant also claimed that she was not given sufficient opportunity to present her claim.  We note that she was able to testify before the Board with the assistance of an interpreter ([55] of Board’s Decision)  and she was able to present her case before the judge in an oral hearing ([13] – [14] of CALL-1 Form).  The applicant did not explain why she considered there was insufficient opportunity to present her claim and we are not satisfied that this ground has any merit.

17.  As for the applicant’s complaint that the Director’s Decision was wrong, the applicant also did not give any particulars to support this ground.  In any event, the Director’s Decision has been overtaken by the Board’s Decision and this complaint therefore would not have any impact on the application for judicial review or this appeal.  This ground is also without merit.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.