RE SUMIATUN D

CACV 226/2018

[2018] HKCA 709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 226 OF 2018

(ON APPEAL FROM HCAL 1130/2017)

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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 the 1^st and 2^nd applicants’ appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 7 June 2018 refusing leave to apply for judicial review. The 1^st applicant is an Indonesian national. She came to Hong Kong in or about May 2010 to work as a foreign domestic helper. The applicant’s 4^th employment contract was prematurely terminated on 22 November 2013 and she was required to leave Hong Kong on or before 6 December 2013. The 1^st applicant did not depart and overstayed from 7 December 2013 onwards. She was arrested by police on 15 January 2014 and was sentenced to 2 months and 2 weeks’ imprisonment for the offence of breach of condition of stay and working illegally. She was discharged from prison on 4 March 2014. The 2^nd applicant is the 1^st applicant’s son who is now over two years old and was born in Hong Kong out of wedlock. On 14 March 2014, the 1^st applicant lodged a non-refoulement claim for herself and for and on behalf of her son. The basis of her claim was that if she were to return to Indonesia, she and her son would be harmed or killed by her parents because her son was born out of wedlock and was a Christian or by a loan shark named Joe because she refused to accept an arranged marriage with him to settle her parent’s debt to him.

2.  The Director decided against the 1^st and 2^nd applicants’ claim on 28 August 2015.  The decision covered the torture risk, BOR 3 risk and the persecution risk.  By a Further Decision of 18 November 2016, the Director also assessed BOR 2 risk and decided against them.

3.  The 1^st and 2^nd applicants appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions.  After a hearing held on 28 November 2016, the Board dismissed the appeal on 2 February 2017. 

4.  The intended judicial review was in respect of the decision of the Board only.  The Form 86 filed by the applicant on 24 August 2017 did not contain any grounds for judicial review.  These were instead deposed to in the 1^st applicant’s affirmation filed on the same day, in which she set out eight grounds for judicial review which were summarised at pages 14 to 16 of her affirmation.

5.  The Judge heard the application for leave to apply for judicial review on 22 January 2018.  After summarizing the background of the case and giving consideration to the decision of the Board, the Judge refused leave to apply for judicial review on the grounds of delay, as the application was made more than three months late, and no explanation was offered for the delay.  She went on to reject the application on its merits giving her reasons at [13] to [19] of the CALL-1 Form in which she addressed all of the grounds put forward by the applicant:

“Leave to apply for judicial review

13. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed material, claims and evidence. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated.

14. There are eight grounds in this supporting affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

15. In grounds 1, 2 and 4, it is submitted the adjudicator failed to consider relevant and up‑to-date COI research, failed to do sufficient research and enquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did consider relevant and objective COI in depth. It was not the applicant’s case and it was unnecessary to assess State acquiescence or whether Indonesia had a consistent pattern of mass violation of human rights that would affect her personally. These grounds are not arguable.

16. The applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her and her son. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to her. She elected not to give evidence. There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the oral hearing. There is no merit in this ground.

17. There is a complaint that the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 18 November 2016 which was before the appeal hearing on 28 November 2016.

18. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19. In my judgement, even if I am wrong in finding delay alone is enough to dispose of this application, the applicants’ claim is still not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

The Appeal

6.  The 1^st and 2^nd applicants filed the Notice of Appeal on 14 June 2018 and sought to raise four grounds of appeal, namely:

(1)   There was procedural impropriety in failing to conduct sufficient enquiry into relevant COI.

(2)   The Board’s decision was irrational in failing to give reason for dismissing their BOR 3 risk claim.

(3)   The Board erred in law in failing to take into account the 1^st applicant’s fear, psychological strain and the danger for the 1^st and 2^nd applicants of being killed or harm if returned to Indonesia. 

(4)   There was a lack of legal representation throughout their appeal hearing before the Board and the determination of the BOR 2 risk claim by the Director.

7.  By a letter received by the court on 11 July 2018, the 1^st applicant consented to this appeal being heard by a two-judge court.

8.  On 1 August 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions.  He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing of the appeal), the 1^st and 2^nd applicants would be deemed to have waived their rights to have an oral hearing and elected to have this appeal disposed of on paper.  The requirement of lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of the applicant is important for the proper and effective functioning of our appeal process and this court has taken a firm stance against non-compliance with such requirement: see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

9.  On 20 August 2018, the hearing of this appeal was fixed for 11 October 2018.  When the hearing date was fixed, the 1^st applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

10.  Despite the directions and reminder, the 1^st and 2^nd applicants did not lodge any skeleton submissions.  Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

11.  We observe first that the application for leave to bring judicial review proceedings was out of time, and was dismissed on this basis.

12.  In the recent decision of this court in MI v Secretary for Security [2018] HKCA 419, it was held that in judicial review cases brought outside the three-month time limit where the judge refused to extend time, an applicant should obtain leave under Section 14AA of the High Court Ordinance before an appeal can be brought.  Such leave should, in the first instance, be sought from the court below.  If leave is refused, the application may be reserved before this court.  This was not done here, and the appeal can be dismissed on this ground. 

13.  In any event, no explanation for the delay has ever been propound, so that there is no basis on which an extension of time for bringing judicial review proceedings should be granted. 

14.  Moreover, none of the grounds of appeal advanced are proper grounds.  No error on the part of the court below is identified.  Instead the grounds of appeal simply regurgitate points made in the court below.  As has been repeatedly pointed out by the court, such an approach will not be entertained.

15.  In any event, we do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that even if the merits were to be considered, leave to apply for judicial review should not be granted.

16.  For these reasons, we do not see any prospect of success in the intended application for judicial review, and the appeal is dismissed accordingly.