RE MEMBRERE SUSAN BIADNO

CACV 187/2020

[2020] HKCA 904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 187 OF 2020

(ON APPEAL FROM HCAL NO. 186 of 2018)

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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 Campbell-Moffat J (“the Judge”) given on 9 June 2020 refusing her leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 20 March 2015 and 31 May 2017 rejecting her non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 February 2018 dismissing her appeal against the Director’s decisions.    

2.  The applicant’s appeal was scheduled to be heard on 9 November 2020.  The applicant was directed to lodge her written skeleton argument by 12 October 2020 and further warned that if she failed to do so, she shall be deemed to have waived her right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 25 August 2020 and the Notice of Hearing dated 7 September 2020. 

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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.  In the present case, as the applicant 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.      

4.  The applicant is a national of the Philippines.  She first arrived in Hong Kong on 2 May 2008 to work as a foreign domestic helper.  Her last employment contract was terminated prematurely on 21 March 2014.  She overstayed, and on 13 October 2014 surrendered to the Immigration Department.  On 13 February 2015, she submitted a non-refoulement claim based on her fear of being harmed or killed by her husband.    

5.  The applicant’s case was set out in detail in the Director’s first decision and also the Board’s decision, and summarised by the Judge in [4] of the Form CALL-1 dated 9 June 2020 ([2020] HKCFI 1147).  In gist, the applicant married her husband in 2000 and had two children.  Between 2004 and 2007, the applicant worked in Taiwan as a domestic helper.  On returning home in 2007, the applicant discovered her husband had spent the money she sent home on drugs.  He was aggressive, violent and would assault the applicant when she refused his demands for money.  For the safety of the children, the applicant arranged for them to be looked after by the parents-in-law.  The applicant had reported her husband to the local authority but nothing happened. The applicant went to stay at her friend’s house, but her husband forcibly took her home.  He gave her a severe beating and threatened to kill her if she should try to run away again.  In 2008 the applicant secretly made arrangement to come to Hong Kong to work as a domestic helper.  The applicant believes that if she returns to the Philippines, her husband will kill or harm her, as he has been looking for her all these years.       

6.  By two decisions dated 20 March 2015 and 31 May 2017, the Director rejected the applicant’s non-refoulement claim.  The first decision covers the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds, and the second decision concerns the BOR 2 risk[4] ground.   

7.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 20 September 2016, during which the applicant had answered questions put by the Board.  By its decision dated 1 February 2018, the Board dismissed the appeal.  In short, the Board considered it was a case of domestic violence and there was no direct evidence that the husband was still looking for the applicant.  The Board also found the applicant’s pain and suffering did not come within the statutory definition of torture and her injuries did not attain the minimum level of severity as to amount to ill treatment or torture under the BOR 3, and her fear of harm was not for a reason within the Convention.  The Board was further of the view that state protection and internal relocation alternatives were reasonably available, and concluded that none of the applicable grounds was made out.           

8.  The applicant filed his Form 86 together with a supporting affirmation on 8 February 2018 to seek leave to apply for judicial review against the decision of the Board.  Neither the Form 86 nor the supporting affirmation set out any ground for seeking relief.      

9.  By her decision of 9 June 2020, the Judge refused to give leave to apply for judicial review.  The Judge indicated that despite the applicant had not provided any ground for her intended judicial review, she had examined the papers and did not find any error of law or procedure or procedural unfairness. The Judge concluded that the intended judicial review had no prospect of success and dismissed the application.    

10.  The applicant filed a notice of appeal on 15 June 2020 to appeal the Judge’s decision.  It did not set out any ground of appeal.  On 12 August 2020, the applicant filed a supplementary notice of appeal.  The applicant stated in the supplemental notice of appeal that:

(1)  She found out in March 2007 that her husband had been taking drugs and had spent all the money she sent home on his drug addiction. 

(2)  Her husband had on several occasions assaulted her and their children.  She could not get medical care as they lived far away from the clinic and hospital.  There was also no police station.  She had reported to the Barrio Captain but nothing happened.

(3)  She came to Hong Kong to work as domestic helper in 2008. She could not find new employment after her last contract was terminated.  She does not want to return to the Philippines as she fears her husband will harm or kill her, and she does not want to endure physical and mental abuses by her husband.  Relocation is not that easy.

(4)  It is costly and difficult to obtain a legal separation in her home country.  The court will not accept an application for legal separation on the ground of physical abuse since the events of abuse and violence happened in 2007 and 2008.  Not only is it difficult, but it also takes a long time as many of the cases in her area have remained unsolved.  

11.  What was stated in the supplemental notice of appeal do not constitute viable grounds of appeal.  As this court held in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)], assessment of evidence and risks of harm, state protection and viability of internal relocation are for the Board and the Director, who are the primary decision makers.  The Court will not interfere with their assessments and decisions by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decisions or the decision-making process. 

12.  Further, the focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration at [14(2)].         

13.  In the present case, both in the application before the Judge and in the appeal before us, the applicant has not identified any error of law or procedure or procedural unfairness in the Board’s decision.  Like the Judge, we also do not discern any proper ground for interfering with the Board’s decision. 

14.  In addition, the applicant has not pointed to any error in the Judge’s decision and reasons.  What she stated in the supplementary notice of appeal all relate to the circumstances of her case, and her reasons for not wanting to return to her home country.  They do not amount to proper basis on which this court can disturb the Judge’s refusal to grant leave to apply for judicial review.

15.  For the above reasons, the appeal has no merits.  Accordingly, we dismiss the appeal.