RE DRI SUHERLINA

CACV 193/2019

[2019] HKCA 954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2019

(ON APPEAL FROM HCAL NO. 348 of 2018)

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JUDGMENT

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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 Bruno Chan (“the Judge”) given on 12 April 2019 refusing her leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 27 January 2017 rejecting her non-refoulement claim, and the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 23 January 2018 dismissing her appeal against the Director’s decision.

2.  The present appeal was listed for hearing on 5 August 2019. The applicant was directed to lodge with the Court two sets of skeleton argument by 8 July 2019 and also warned that if she failed to do so, she would be deemed to have abandoned 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 letter dated 20 May 2019 and the Notice of Hearing dated 18 June 2019.

3.  The requirement for lodging skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is essential 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.  In the present case, as the applicant had failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

5.  The applicant is an Indonesian national.  She first entered Hong Kong in August 2010 to work as a domestic helper.  She last entered Hong Kong on 20 December 2012 and was permitted to stay as a visitor until 30 December 2012.  During her stay, she was arrested, and was subsequently convicted of attempted theft and sentenced to four weeks’ imprisonment.  In March 2014, she raised a non-refoulement claim on the ground that if she were to return to Indonesia, she would be harmed or killed by her husband who practised black magic.     

6.  The applicant’s background and the details of her claim were set out in full in [7.1] to [9] of the Director’s decision and [11] to [50] of the Board’s decision, and summarized by the Judge in [1] to [10] of the Form CALL-1 dated 12 April 2019, [2019] HKCFI 930.  In brief, the applicant said her husband was abusive and violent and had subjected her to domestic violence, and assaults upon her refusal to join him in his cult practice and rituals.  The applicant also claimed her husband practised black magic on her, causing her to fall ill, and she had to leave Indonesia to avoid him. 

7.  By a Notice of Decision dated 27 January 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, torture risk^[1], BOR 3 risk^[2], BOR 2 risk^[3] and persecution risk^[4].

8.  The applicant appealed to the Board.  A hearing was held on 29 December 2017 and the applicant was legally represented through the assistance of the Duty Lawyer service.  By its decision dated 23 January 2018, the Board held that the applicant had failed to establish a case on any of the applicable grounds, and dismissed her appeal.  The Board’s assessment and findings on the applicant’s claim are set out in [70] to [173] of the decision.

9.  On 5 March 2018, the applicant filed a Form 86 and an affirmation to seek leave to judicially review the Director’s and the Board’s decisions.  The applicant put forward the following grounds for the relief sought:

(1)  The Director and the Board erred in their assessment of her claim.

(2)  The decisions of the Director and the Board were Wednesbury unreasonable and unfair.

(3)  The Director and the Board failed to consider that the right to life must be protected from extra-judicial killing, which was what she may face if she were deported to Indonesia.

(4)  The Board failed to give her sufficient time and opportunity to arrange relevant evidence to support her claim and her appeal.

10.  At the request of the applicant, an oral hearing was held on 26 September 2018 to hear her leave application.  The applicant appeared in person and was assisted by an Indonesian interpreter.  After considering the applicant’s grounds for judicial review and her submission, the Judge was of the view that the intended judicial review had no prospect of success and refused to grant leave to apply for judicial review.  The Judge set out his reasons in [16] to [19] of the Form CALL-1 as follows:

“16.  [The grounds] are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unreasonable or unfair, or what relevancy were extra-judicial killings to her claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

17.  As for her complaint of not being given sufficient time or opportunity to present her evidence in support of her claim or her appeal, I note that it was never raised by her in her appeal to the Board nor during her oral hearing before the adjudicator, and that even now in her application or at her oral hearing before me she did not present any further evidence in support of her claim other than a letter received by the Court on 20 August 2018 in which she merely repeated her claim and that the decisions of the Director and the Board were unfair without any further particulars or additional evidence. As such I do not find any merit in this complaint of the applicant either.

18.  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 the applicant’s claim is plainly domestic violence for which state or police protection would be available to the applicant, and that it is a localized one where 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.

19.  In the premises and having proceeded to consider 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.”

11.  By a notice of appeal dated 23 April 2019 and an affirmation filed on the same day, the applicant appealed the Judge’s decision to this Court.  In the notice of appeal, the applicant stated that she could not return to her home country because her life would be in danger.   

12.  This Court has repeatedly pointed out that judicial review does not operate as a rehearing of an applicant’s non-refoulement claim. Evaluation of the evidence and assessment of the merit of the claim is a matter for the Director and the Board, who are the primary decision makers.  The court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  Hence, merely advancing broad and general assertions of errors on the part of the decision-makers and their decisions will not provide basis for granting leave to judicial review.  Further, the focus of an appeal to this Court is on the correctness of the Judge’s decision.  It is incumbent upon an appellant to point to errors in the decision and reasons given by the trial judge.  

13.  In the present appeal, what was stated in the notice of appeal does not constitute viable grounds of appeal.  The applicant has failed to identify any error in the Judge’s decision and reasons for decision.  We are further in agreement with the Judge that the grounds for judicial review are not reasonably arguable and the intended judicial review has not prospect of success.    

14.  There is no merit in the appeal.  Accordingly, we dismiss the appeal.