RE TUGIYAH

CACV 213/2018

[2018] HKCA 793

N THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 213 OF 2018

(ON APPEAL FROM HCAL NO. 1118 of 2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 29 May 2018 refusing her leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 8 December 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 15 August 2016 and 25 July 2017 rejecting her non-refoulement claim.  The applicant consented to the appeal being dealt with by a two-judge court.  

2.  The appeal was listed to be heard on 19 October 2018.  The applicant was directed by the Registrar of Civil Appeals to lodge 2 sets of skeleton argument not less than 28 days before the hearing of the appeal, and was also warned that should she fail to do so, she shall be deemed to waive her right to an oral hearing and elect to have her appeal disposed of on paper, in which case the hearing date would be vacated and the appeal processed on paper.  The direction and the warning were communicated to the applicant in the letter from the court dated 17 July 2018 and also in the notice of hearing dated 1 August 2018.  

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton arguments is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of non-compliance is treated as the abandonment of the right to an oral hearing. 

4.  The applicant did not lodge any skeleton argument by the stipulated time.  The hearing date of the appeal was accordingly vacated, and we have proceeded to consider this appeal based on the available materials before us.

5.  The applicant is an Indonesian national.  She came to Hong Kong on 14 July 2006 with permission to work as a domestic helper until 14 July 2008. When her visa expired, she did not depart and has since 15 July 2008 overstayed in Hong Kong.  On 19 August 2013, she was arrested by Labour Department inspectors. She raised a non-refoulement claim on 2 September 2013 based on her fear that she would be killed by her stepfather’s creditor (“Tukiman”) because she refuses to marry him.  

6.  The applicant’s account of events was detailed in the decisions of the Director and of the Board and summarized by the Judge in [2] to [9] of the Form CALL-1 dated 29 May 2018, [2018] HKCFI 1141.  In brief, the applicant’s parents divorced and her mother had remarried.  In 2009 while she was overstaying in Hong Kong, the applicant was informed by her mother that her stepfather had borrowed large sums of money from Tukiman, who was a loan shark.  Her mother asked her to marry Tukiman so that the loans need not be repaid, but she refused.  Since then Tukiman kept calling her and threatened to harm and kill her family members if she did not marry him.  Her family also told her that they were harassed by Tukiman who demanded her to marry him.  She had asked her sisters to report to the authorities but they were too afraid to do so.  The applicant also did not think the authority would protect them since the loans were illegal.  

7.  By Notice of Decision dated 15 August 2016 and Notice of Further Decision dated 25 July 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds while the further decision assessed the BOR 2 risk[4] ground.      

8.  The applicant appealed the Director’s decisions to the Board, which heard the appeal on 30 October 2017.  The applicant elected to give evidence.  Apart from adopting the materials submitted to the Director, she also submitted the additional information set out in [10] of the Board’s decision dated 8 December 2017.  

9.  The Board found the applicant’s account that she was forced to marry Tukiman, who had threatened to kill her if she refused to be largely credible, despite lacking in details.  However, the Board assessed the risk of the applicant being subject to ill-treatment or being killed, if refouled to Indonesia, to be low, which was further reduced by the availability of state protection and availability of internal relocation options.  The Board was also of the view that there were no substantial grounds for believing that the applicant would be in danger of being subjected to torture upon return to Indonesia, and that there was no evidence of government consent or acquiescence.  It was further considered that the likelihood of serious harm or death materialising is low, and the conflict between the applicant and Tukiman is private in nature.  The Board concluded that the applicant had failed to make out a case on any of the applicable grounds and dismissed the appeal. 

10.  The applicant filed her Form 86 on 21 December 2017 seeking leave to apply for judicial review against the decision of the Board.  In the affirmation filed on the same day, the applicant set out her grounds for judicial review, which, however, covered also the Director’s decisions.  In gist, the applicant complained that the Director and the Board failed to consider the concept of extended state acquiescence and her psychological strain, had misdirected themselves in law and were wrong to disbelieve her and to find reasonable internal relocation was available.  It was also said that the Director had failed to conduct sufficient inquiry into the country of origin information (“COI”) and to give reason for the BOR 2 assessment.

11.  The Judge heard the leave application on 15 May 2018.  The Judge concluded that the intended judicial review was not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review.  He set out the reasons in [31] to [35] of the Form CALL-1:

“31. The Applicant complained the Director failed to conduct sufficient enquiry of relevant country-of-origin information (“COI”) and failed to give reasons for his BOR2 risk decision. That is not true. The immigration officer on behalf of the Director had given sufficient and balanced consideration of COI relevant to the Applicant’s claim.

32. The Director's further decision dated 25 July 2017 on BOR2 risk was brief. However, it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 15 August 2016, which contained a detailed analysis of the Applicant's case. The Applicant had no additional facts for the Director's consideration of BOR2 risk, which was only a further issue to be considered by the Director on the basis of the same facts and evidence already analysed carefully in the previous decision dated 15 August 2016. It is sufficient for the Director to state in his further decision dated 25 July 2017 that the Applicant had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 15 August 2016.

33. I have reviewed the decisions of the Director and the Adjudicator under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had considered the Applicant's case carefully and applied the law correctly. They had basis to make their findings, conclusions and decisions which were not Wednesbury unreasonable. They had given due consideration to all the relevant issues including state acquiescence. They were justified to find there was no state acquiescence but reasonable state protection and internal relocation were available to the Applicant.

34. There is no substance in any of the Applicant's complaints.

35. In my judgment, the Director and the Adjudicator made no errors of law and there was no procedural unfairness. They had each engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Director and the Adjudicator gave due consideration to the Applicant's claim. They applied the law correctly. The Director and the Adjudicator were entitled to render those findings, conclusions and decisions which were all reasonable. They had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

12.  The grounds of appeal set out in the Notice of Appeal dated 11 June 2018 repeated the grounds in the affirmation in support of the application for leave to apply for judicial review, namely, failure to consider the concept of extended state acquiesce, failure to conduct sufficient inquiry into the relevant COI, failure to give reason for the BOR 3 risk assessment, failure to consider the psychological strain and threat occasioned to her and error in not accepting her credibility. The applicant also indicated in the Notice of Appeal that she was seeking legal assistance and reserved the right to submit further documents.  She gave no elaboration on the documents she intended to submit.  She had in fact not put in any further ground or document in support of her appeal.  In any event, she could not put in new evidence without first obtaining the Court’s approval and satisfying the legal requirements. 

13.  The grounds of appeal are no more than a repetition of the grounds for judicial review that had been rejected by the Judge (see [10] and [11] above).  The applicant has not identified any error in the Judge’s reasons for decision.  There is no basis at all for us to interfere with the Judge’s decision.  There is no merit in the appeal.  Accordingly, we dismiss the appeal.