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CACV 395/2021
[2021] HKCA 1842
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 395 OF 2021
(ON APPEAL FROM HCAL 2170 OF 2018)
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Before: Hon Barma JA and Lisa Wong J in Court
Date of Judgment: 6 December 2021
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JUDGMENT
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 5 August 2021 (“Judge’s Decision”) refusing to grant leave for judicial review. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 2 October 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 23 November 2017 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of Indonesia, is a fear of being seriously harmed or even killed by a loan shark whose name is unknown to her (“Creditor”) and who had a monetary dispute with her husband (“Rohmanudin”).
3. For a detailed summary of the circumstances allegedly giving rise to such fear, see paragraph 8 of the Director’s Decision, paragraphs 25 to 45 of the Board’s Decision and [1] to [3] of the Judge’s Decision in the Form CALL-1 [2021] HKCFI 2287 (“Form CALL-1”).
4. Briefly:
(1) In around 1994/1995, Rohmanudin started a grocery store, with a loan of 10,000,000 rupiah (“Loan”) obtained from the Creditor. The principal of the Loan was repayable by 1996/1997.
(2) The applicant was the guarantor of the Loan.
(3) Rohmanudin’s business did not do well and he missed several monthly interest payments (of 200,000 rupiah each).
(4) The Creditor visited the family home twice to look for Rohmanudin to demand him to repay the Loan. He threatened to harm Rohmanudin if the Loan was not repaid on the second occasion.
(5) In 1996, the applicant obtained employment in South Jakarta. She remitted her wages to Rohmanudin every month to enable him to make some repayment to the Creditor. The applicant remained in South Jakarta from around March 2003 to January 2004, during which time she was not approached by the Creditor at all. In the meantime, Rohmanudin’s business went bankrupt. The applicant became the source of income for the repayment of the Loan.
(6) One afternoon in 1999 when the applicant had returned home, the Creditor came and asked the applicant if she had the money to settle the Loan. When she replied in the negative, the Creditor reminded her that she was the guarantor.
(7) Later on the same day, the Creditor, accompanied by another man, came again and said he would take the applicant away if he could not collect repayment of the Loan. They waited for Rohmanudin to return home for 2 to 3 hours. The applicant eventually managed to sneak away. The Creditor just left afterwards. The applicant was too scared to make any complaint to the police.
(8) The applicant had no other encounter with the Creditor.
(9) In 2004, she began working as a foreign domestic helper in Hong Kong. She has since never returned to Indonesia.
(10) The applicant also ceased all contact with Rohmanudin from 2010, after quarrels over the telephone.
Overstaying in Hong Kong and lodgment of NRF Claim
5. The applicant last arrived in Hong Kong on 20 January 2004. After several renewals of her employment contracts, her permission to stay in Hong Kong was last extended to 19 September 2011. After the early determination of her last contract of employment on 7 September 2011, the applicant did not leave and had overstayed since 21 September 2011. On 1 June 2012, she was convicted of, and sentenced to 4 weeks’ imprisonment suspended for 3 years for, the offence of overstaying. On 28 June 2012, she was arrested for taking employment while being a person against whom a removal order was in force. On 1 August 2013, she was sentenced to 13 months’ imprisonment and her previous suspended 4-week sentence was activated.
6. In the meantime, the applicant had on 3 July 2012 made a torture claim (“Torture Claim”) under Part VIIC of the Immigration Ordinance (Cap 115) (“Ordinance”), for which she completed a torture claim form dated 18 March 2013 (“TCF”) and attended a screening interview on 16 May 2013 (“1st Interview”). The Torture Claim was rejected by the Director on 18 July 2013. The applicant did not appeal against such rejection.
7. Instead, on 4 September 2013, she claimed for protection against the risk of cruel, inhuman or degrading treatment or punishment (“CIDTP”), in respect of which the applicant completed a supplementary claim form dated 25 October 2017 (“SCF”) and attended another screening interview on 13 November 2017 (“2nd Interview”).
Director’s Decision
8. The applicant’s claim against CIDTP was treated and processed as a non-refoulement claim. Having rejected the Torture Claim which was not appealed against, the Director therefore considered the NRF Claim on all grounds for non-refoulement protection other than torture risk[1], i.e. persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].
9. After considering the information provided by the applicant in the TCF and the SCF and at the 1st and 2nd Interviews, the Director found the NRF Claims unsubstantiated.
(1) First, there are no substantial grounds for believing that there will be any real or substantial risk of the applicant being harmed or killed by the Creditor upon her return to Indonesia. There is no evidence of the existence of the Loan. Even if the debt did exist, no physical harm had ever been caused to the applicant by the Creditor, nor was he able to track her down in South Jakarta. There is also nothing to suggest that the Creditor or his friends were acting in an official capacity.
(2) Second, the availability of reasonable state protection would lower or even negate the risk, if any. The applicant never sought protection from the police or other authorities in Indonesia, alleging she would have had to bribe them first. There is objective country of origin information (COI) showing that the Indonesian government has taken practical steps, with positive results, to improve institutional effectiveness and to monitor the conduct of the local police. There are also channels for complaints against police misconduct.
(3) Third, the perceived risk is localised and can be reduced by internal relocation within Indonesia. The applicant, an able-bodied adult with over 10 years of working experience, would suffer little or no hardship in moving to say South Jakarta (where she had lived and worked before) or East Java.
Appeal to Board and Board’s Decision
10. The applicant appealed to the Board. The Board conducted a rehearing of the NRF Claim on 6 July 2018. The applicant attended to give evidence and answered the Board’s questions through an interpreter.
11. The Board dismissed the appeal on the 3 applicable grounds for non-refoulement protection (i.e. persecution risk, BOR 2 risk and BOR 3 risk). The Board had difficulty in clarifying the applicant’s claim. It noted that the applicant claimed to be in fear of Rohmanudin because of his politics or political/religious beliefs in her letter dated 3 July 2012 to the Director, by which she raised the Torture Claim, but did not mention such alleged fear in the TCF or the NCF or at either of the 1st or 2nd Interviews. Upon being asked by the adjudicator about her earlier assertion, the applicant then claimed to fear (1) persecution by reason of her husband’s political beliefs as well as (2) harm from her husband who had subjected her to physical violence. The Board found these new claims, unsupported by evidence and lacking in particulars, to be incredible. The Board, by reason of its adverse finding on the applicant’s credibility, concluded that there are no substantial grounds for believing that she would be harmed or killed by the Creditor upon her return to Indonesia.
12. The Board reached the same conclusion as the Director regarding the issues of state protection and internal relocation.
Application for leave for judicial review and Judge’s Decision
13. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2170/2018 on 9 August 2018, the applicant applied for judicial review of the Board’s Decision without stating any proposed ground for judicial review. The supporting affirmation of the same date merely exhibited copies of the hearing bundle in the proceedings below and the Board’s Decision.
14. The applicant did not request an oral hearing. The Judge refused leave on paper for the reasons set out in [8] to [13] of the Form CALL-1:
“8. On 9 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached the hearing bundle for her appeal before the Board but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
9. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
10. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 46 – 71 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.
11. The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
12. In the premises and having considered 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.
13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”
Appeal to Court of Appeal - grounds of appeal
15. By a notice of appeal filed herein on 17 August 2021, the applicant appealed against the refusal of leave for judicial review without stating any proposed grounds of appeal.
16. In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 1 September 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.
17. The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1. The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants. Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.
18. The hearing date on 22 November 2021 was therefore vacated and the applicant was debarred from lodging any written submissions. We will deal with the appeal on paper on the basis of the material already filed with the court.
Discussion
19. In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.
20. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
21. The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision. That being the case, the application for judicial review of the Board’s Decision was hopeless and leave was rightly dismissed.
22. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
23. The applicant has not identified any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
Disposition
24. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Aarif Barma) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the
Court of First Instance |
The applicant was unrepresented and absent
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Ordinance which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or CIDTP covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
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