RE YENI ASTUTI

CACV 538/2018

[2019] HKCA 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 538 OF 2018

(ON APPEAL FROM HCAL 132 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) refusing leave to apply for judicial review dated 29 October 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2334.  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 17 January 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 25 July 2016 (“the Director’s First Decision”) and 10 July 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 5 March 2019.  The applicant was directed to lodge three sets of skeleton argument by 4 February 2019 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 22 January 2019.

3.  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 to be 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.

4.  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

5.  The applicant is a national of Indonesia.  She worked as a domestic helper in Hong Kong from February 2008 to April 2012.  From May 2012 to August 2012, she travelled between Hong Kong and Shenzhen waiting for new employments.  She last entered Hong Kong on 18 August 2012 and was permitted to stay until 21 August 2012.  She overstayed and was arrested on 27 February 2013.  She lodged her non-refoulement claim on 11 March 2014.

6.  The details of the applicant’s claim and her personal backgrounds were set out in paragraphs 5 - 14 of the Director’s First Decision, and paragraphs 1 and 9 - 17 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that if she were to return to Indonesia, she would be harmed and even killed by the creditor or his people because she was unable to repay the debt borrowed by her husband.

The Director and the Board’s Decisions

8.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk.^[3] The Director’s Second Decision assessed the BOR 2 risk^[4].

9.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 28 November 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  In the Board’s Decision, although recognized that there might be threats from the creditor to the applicant’s mother, the Board found that internal relocation was available to the applicant (paragraphs 32 - 34 of the Board’s Decision) and thus dismissed the appeal.

The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 29 January 2018 seeking leave to apply for judicial review against the Board’s Decision.  She also filed an affirmation purporting to support the Form 86 application on the same date. In her supporting affirmation the applicant complained that the Board unlawfully fettered its discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions and failed to meet the greater care and duty owed to a self-represented claimant.  The applicant also complained the delay in serving the hearing bundle and the Board’s reliance on outdated cases or information that were not officially recognized or simply hearsay.

11.  The applicant’s leave application was heard on 27 June 2018.  The applicant confirmed the grounds for judicial review in the Form 86 and her supporting affirmation.  Having considered the documents and the applicant’s submissions, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in paragraphs 30 ‑ 43 of the Deputy Judge’s Decision:

“30.   Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31.   A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul that:

‘The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.’

32.   The Applicant mentioned she did not have legal representation to help her preparation for appeal to the Board. She had been represented by the Duty Lawyer Service up to the Director’s decision dated 25 July 2016.

33.   The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant could not show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

34.   The Applicant complained she received the appeal bundle only on or about 17 November 2017.

35.      According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

36.   The Applicant received the appeal bundle 11 calendar days (or 9 working days after excluding two Sundays) prior to the appeal hearing scheduled for 28 November 2017. Thus, the bundle was served on her in time.

37.   The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult and there was no evidence to show the bundle was difficult or voluminous.

38.   In court, the Applicant admitted she had a friend to prepare Form 86 and the affirmation for her. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated her problem of getting interpretation/ translation assistance and handling documents.

39.   A few days’ time certainly was not a long period but could be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for the appeal. There was no evidence to show she had complained to the Adjudicator or asked for adjournment during the appeal hearing.

40.   There was also no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator. In fact, she said in her affirmation that she answered all the Adjudicator’s questions honestly. That would mean the Applicant knew well what was happening in the appeal hearing. She was not confused.

41.   The Applicant accused the Adjudicator had relied on outdated cases or information not officially recognized or simply hearsay. There was no evidence of that. The Applicant also failed to be specific.

42.   The Applicant has other vague complaints. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the applicant’s complaints is substantiated.

Conclusion

43.   The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.”

Grounds for appeal

12.  The applicant filed a Notice of Appeal dated 30 October 2018 to appeal the Deputy Judge’s Decision.  In the Notice of Appeal, she did not address any errors in the Deputy Judge’s Decision.  Instead, she merely repeated the basis of her claim and complained that the Board had significantly relied on the source of news which was not officially recognized, or it was simply hearsay.  She also complained that the cases relied upon by the Board were outdated considering the dramatic changes.

Discussion

13.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

14.  Firstly, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

15.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  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, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the 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.

17.  In light of the above, it is thus incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any error in the Deputy Judge’s Decision.  The grounds advanced by the applicant in the Notice of Appeal are against the Board’s Decision, which were properly addressed by the Deputy Judge in his reasons.  These are no viable grounds of appeal.

18.  In any event, we have looked at the decisions of the Board and of the Deputy Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s decision.

19.  The applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.