RE SITI NURUSSAADAH S (a minor)

CACV 337/2018

[2019] HKCA 142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 337 OF 2018

(ON APPEAL FROM HCAL 681/2017)

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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 Josiah Lam given on 16 July 2018 refusing 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 dated 22 September 2017 dismissing the applicants’ appeal against the decision of the Director of Immigration dated 7 November 2016 rejecting the applicants’ non-refoulement claims.

Background

2.  The 1^st applicant is a national of Indonesia.  She entered Hong Kong on 17 February 2009 as a visitor.  She overstayed and filed a torture claim on 14 October 2009.  Her torture claim was rejected by the Director of Immigration (“Director”) on 3 May 2013.  She appealed to the Torture Claims Appeal Board (“Board”) and her appeal was dismissed on 18 August 2014.

3.  On 22 May 2013, she raised a non-refoulement claim which she subsequently withdrew. On 19 June 2015, she applied to re-open this claim.  The Director acceded to this request on 6 July 2015.

4.  On 18 August 2015, the 1^st applicant gave birth to her son, the 2^nd applicant.  The 1^st applicant made a claim on behalf of the 2^nd applicant on 28 December 2015.   

5.  The applicants’ claim was based on threats from the father of the 1^st applicant. The details of the applicants’ claims have been summarised by the judge at [2] to [10] of the CALL-1 Form.

6.  By a Notice of Decision dated 7 November 2016 (“the Director’s Decision”), the Director decided against the applicants’ claims.  In relation to the 1^st applicant, the Director only considered the BOR 3 risk^[1] and the persecution risk^[2] because her claim based on torture risk^[3] had been determined in an earlier decision dated 3 May 2013.  As for the 2^nd applicant, the Director’s Decision covered the BOR 3 risk^[4], the persecution risk, and the torture risk.

7.  The applicants appealed to the Torture Claims Appeal Board.  After a hearing on 9 August 2017, the Board dismissed the appeal on 22 September 2017 (“Board’s Decision”).  In addition to the risks considered by the Director, the Board also considered BOR 2 risk^[5] for both applicants.

8.  In the Board’s Decision, the Board found that there is no evidence to show that the applicants will be subject to any of the proscribed risks upon their return.  The Board was also satisfied at [85] that state protection would be available for the applicants and at [79] and [87] that internal relocation would be viable.

The deputy judge’s decision

9.  The applicants filed a Form 86 on 26 September 2017 which contained no ground for seeking relief. 

10.  In the affirmation in support of the leave application dated 26 September 2017, the applicants advanced various grounds for judicial review which are summarised below:

(i)   lack of legal representation;

(ii)   lack of language assistance; and

(iii)   lack of fair hearing.

11.  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 [33] to [42] of the CALL-1 Form:

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

34. 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’.

Lack of legal representation

35. A1 complained she was not provided with legal assistance after the Director’s decision dated 7 November 2016.

36. The Court of Appeal has repeatedly stated an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. A1 cannot demonstrate to this court how her case or A2’s case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

37. A1 complained there was sufficient interpretation/translation assistance.

38. In court, A1 admitted a lawyer helped her to prepare Form 86 and the affirmation for the current application for leave for judicial review. She admitted there was nothing to prevent her from going to a lawyer for assistance (legal/language). Of course, she would have to pay for the lawyer’s service but that was not a good ground to complain she was short of interpretation/translation assistance.

39. A1 complained she was not given a translation copy of the non-refoulement claim form (‘NCF’). Therefore, she could not find out if the interpreter had been translating /interpreting the basis of her claim properly. A1 was merely speculating. It is not a proper ground of complaint.

Lack of fair hearing

40. A1 complained the Director was excused from attending the appeal on 9 August 2017 before the Adjudicator. I cannot see how the Director’s excused absence would prejudice the Applicants’ appeal.

41. I have reviewed the Directors decisions and the Adjudicator’s decisions under ‘rigorous examination and anxious scrutiny’. The Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in A1’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with A1 in the inquiry process. A1 had been given reasonable and sufficient opportunities to state and elaborate her case and her son’s case. The reports of the Director and the Adjudicator showed they were acquainted with the facts and they applied the law correctly. They considered the claims of A1 and A2 carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the non-refoulement claims of A1 and A2.

Conclusion

42.   A1’s complaints (for A1 herself and for her son A2) are not reasonably arguable either against the Director or the Board. The two applicants have no realistic prospects of success in the sought judicial review. I therefore refuse to grant them leave for the review.”

Grounds for appeal

12.  In the Notice of Appeal dated 24 July 2018 the applicants advanced the following grounds of appeal:

“1. It was mentioned that ‘A1 cannot demonstrate to this court how her case or A2’s case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process’. I respectfully disagree. The fact that there are a lot of honour killings in Indonesia and the fact that women are subject to a lot of brutal and torturous abuses that leads to the deprivation of right to life, the fact that my BOR 2 claim was rejected by the Director of Immigration without having my case referred to the Duty Lawyer Service, together with the fact that there was an absence of additional information because of the fact that I could not understand the content of the letter, should be considered prejudicial.

2. I also should have been entitled to a translation copy of the non-refoulement claim form because some people have the copies translated whereas I do not. As a claimant whose first language is a language other than English, I believe that it is only fair if I am provided with a copy of my document in my first language.

3.   I therefore seek a reconsideration of my case to be heard by way of an oral hearing with an interpreter arranged so I can put forward my reasons orally in my first language in person.”

13.  The applicants failed to comply with the direction made by the Registrar of Civil Appeals on 21 September 2018 requiring them 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.

14.  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.

15.  The hearing date on 15 January 2019 was therefore vacated and the applicants were 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

16.  Ground 1 of the Notice of Appeal is apparently directed at [36] of CALL-1 Form.  This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  The judge was correct in his assessment at [36]. Further, the applicants failed to identify any further information relating to BOR 2 risk which they could have provided.  They have thus failed to identify any real prejudice.

17.  As for the ground based on the lack of a translated copy of the non-refoulement claim form, it is simply a regurgitation of argument duly rejected in the judgment below.  It is not a viable ground of appeal.

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