RE SARTINAH

CACV 150/2023, [2023] HKCA 1247

On appeal from [2023] HKCFI 1137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2023

(ON APPEAL FROM HCAL 1248/2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 5 May 2023 refusing the applicant leave 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 (“the Board”) dated 3 May 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 December 2017 (“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 2006, but she overstayed and was arrested by the police on 18 December 2011.  Thereafter, she lodged a non-refoulement claim on 30 July 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by her father and her husband for converting from Islam to Christianity.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 29 December 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 28 December 2018, the Board dismissed the appeal on 3 May 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  In dismissing her appeal and although accepting the fact that she had previously received threats from her husband and father, the Board considered that there was no reliable evidence to suggest that the applicant would face any risk of harm 10 years after the most recent threat she received from them.  The Board also found that in any event, state protection and suitable options of internal relocation were available to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 9 May 2019 seeking to judicially review the Board’s Decision, without setting out any grounds of review.  In her supporting affidavit filed on the same day, she merely attached a copy of the Board’s Decision.

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [13] of the CALL-1 Form:

“9. On 9 May 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 16 May 2023, the applicant made several complaints against alleged errors committed by the Director and the Board, including the alleged failure by the Board to make “sufficient [enquiries]” before reaching its Decision.

9.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals by letter dated 16 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.

10.  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.

11.  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

12.  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.

13.  The applicant’s complaints made against the Board and the Director were not raised with the Judge in the court below.  We do not see any basis to allow her to now raise these points for the first time on appeal.  The applicant has provided no particulars nor has she elaborated on the alleged errors committed by the Board and the Director and how such alleged errors are said to have impacted on the fair and proper processing of her claim.  These allegations are in our view totally devoid of merit.

14.  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.  The Judge had rigorously examined the decisions of both the Director and the Board, and saw no basis for intervention.  In our view, he was clearly correct to do so.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision. 

16.  The applicant’s appeal is accordingly dismissed.