RE DIANA DAMAYANTI

CACV 559/2020

[2021] HKCA 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 559 OF 2020

(ON APPEAL FROM HCAL NO. 573 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 application for relief from the sanction imposed by the unless order made by Chu JA on 26 February 2021 (“Unless Order”).

2.  With an extension of time granted by Deputy High Court Judge Bruno Chan (“the Judge”) on 7 October 2020[1], the applicant filed a Notice of Appeal on 19 October 2020 to appeal against the Judge’s decision given on 4 August 2020 refusing to give 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 22 March 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 July 2017 rejecting her non-refoulement claim. 

3.  The applicant consented to her appeal being dealt with on paper without an oral hearing.  She has, however, failed to comply with Order 59 rule 5(1)(a) of the Rules of the High Court, Cap. 4A which requires her to lodge with the Court a sealed copy of the Judge’s order of 4 August 2020.  Accordingly, on 30 November 2020, the Registrar of Civil Appeals directed that unless on or before 16 December 2020, the applicant lodged a copy of the sealed order, the case will be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order that carried the sanction of a dismissal of the appeal. 

4.  The applicant did not comply with Registrar of Civil Appeals’ direction.  Consequently, on 26 February 2021, Chu JA made the Unless Order, which was communicated to the applicant by letter of 26 February 2021. The Unless Order stipulated that:

“Unless by 4:30 pm on 15 March 2021 the applicant lodges with the Court a copy of the sealed order dated 4 August 2020, the appeal shall without further order stand dismissed.”

5.  The applicant did not comply with the Unless Order.  The appeal was therefore dismissed on 16 March 2021.  The order dismissing the appeal was mailed to the applicant by a letter dated 22 March 2021. 

6.  On 21 April 2021, the applicant issued the present summons together with a supporting affirmation to seek relief from the sanction imposed by the Unless Order. 

7.  On 26 April 2021, the Registrar of Civil Appeals gave directions on the lodging of application bundles and written submission. Although the applicant put in two sets of documents, they were not in full compliance with the directions in that the documents were not put in lever-arch files or binders and the indexes did not contain page references. More importantly, the Form CALL-1 dated 4 August 2020 containing the Judge’s decision and the sealed order of 4 August 2020 had not been included in the documents.  Despite the further directions of the Registrar of Civil Appeal given on 10 May 2021 and the order of Chu JA made on 2 June 2021, the applicant did not rectify the above non-compliance.  She also did not put in a written submission to support her application.

8.  We deem it that the applicant waives her right to put in a written submission, and will proceed to consider her application on the basis of the materials before the Court.      

9.  Order 2 rule 4 of the Rules of the High Court, Cap. 4A provides that: “Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.”  Since the applicant’s summons was issued more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect. 

10.  Under Order 2 rule 5(1), when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, among others, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

11.  In the affirmation in support of the present application, the applicant has given no explanation of her failure to comply with the Court’s directions and the Unless Order.  She only stated that her life is still in danger in Indonesia, and that she has a son in Hong Kong, who is attending school and needs her care.  She asked that her stay in Hong Kong be extended until her son reaches 11 years old and can obtain his identity card.     

12.  As the applicant has provided no explanation for her non-compliance with the Court’s repeated directions and the Unless Order, and she has up to date not lodged with the court the sealed order, there is no proper basis for the Court to exercise its discretion to give relief from the sanction imposed by the Unless Order.   

13.  We are further of the view that, for the reasons given below, the applicant’s appeal has no merits, which is a weighty factor why the Court should not grant relief from the sanction imposed by the Unless Order.    

14.  The applicant is an Indonesian national aged 42.  She first came to Hong Kong in March 2012 to work as a domestic worker.  After her employment contract was terminated on 1 April 2014, she overstayed.  After she was arrested by the police on 21 September 2015, she made a non-refoulement claim based on fear of being harmed or killed by her husband and his creditors.

15.  By his decision dated 31 July 2017, the Director refused the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds. 

16.  The applicant’s appeal to the Board was heard on 29 January 2018, during which the applicant informed the Board that she gave birth to a son on 12 October 2017 and the boy’s father is a Hong Kong resident.  By its decision dated 22 March 2018, the Board dismissed the appeal on all the applicable grounds.  Principally the Board considered that it is a case of domestic abuse which began in 2005, but the applicant had put up with the situation.  The Board found that it is not due to fear of her husband’s abuse, but because of her relationship with a Hong Kong resident, with whom she has a son, that the applicant wants to remain in Hong Kong and has raised a non-refoulement claim.  The Board also found that the husband’s creditors only exerted pressure on her to make repayments but had not attacked her.  The Board held that the applicant failed to show she would face a real and personal risk of harm or ill treatment upon her return to her home country.  It also held that internal relocation alternatives and state protection are reasonably available, which would reduce or negate any harm that she may face.    

17.  The applicant filed a Form 86 on 6 April 2018 together with an affirmation to apply for leave to judicially review the decision of the Board.  She did not provide any specific grounds for seeking relief, other than stating in her affirmation that she was afraid her husband would kill her and her baby boy. 

18.  By his decision of 4 August 2020, the Judge refused to give leave to apply for judicial review.  The Judge’s reasons for the decision were set out in [12] to [15] of the Form CALL-1, [2020] HKCFI 1777. Primarily the Judge, after examining the decisions of the Director and the Board, considered there was no error or law, irrationality or procedural unfairness, and concluded that the intended judicial review was unarguable and had no reasonable prospect of success.  

19.  In her notice of appeal to appeal the Judge’s decision, the applicant did not set out any grounds of appeal.  She only stated that her life would be in danger if she were to go back to Indonesia.  She claimed that her husband would kill her because she gave birth to a son in Hong Kong.  She asked that her stay in Hong Kong could be extended so that her son can receive good education here.   

20.  The matters put forward by the applicant are not viable grounds of appeal.  The focus of an appeal is the correctness of the decision and reasoning of the judge below.  However, the applicant has not identified any error in the Judge’s decision or reasoning.  We also agree with the Judge that her intended judicial review has no reasonable prospect of success.    

21.  As the applicant’s appeal has no merits, it would be futile to grant relief and allow the applicant to proceed with the appeal.  It is also not in the interest of administration of justice to grant the relief sought.     

22.  For the above reasons, we refuse the application for relief from the sanction imposed by the Unless Order, and dismiss the applicant’s summons dated 21 April 2021.