RE SITI RODIYAH

CACV 430/2021

[2021] HKCA 1854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 430 OF 2021

(ON APPEAL FROM HCAL 8 OF 2019)

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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 2 September 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 10 December 2018 (“Board’s Decision”)[1], 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 11 April 2018 (“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 harmed or even killed by her ex-husband, Kozinatul Asror (“KA”), due to KA’s refusal to give to the applicant the half share of the family property to which she is entitled.

3.  A detailed summary of the circumstances allegedly giving rise to such fear can be found in paragraph 6 of the Director’s Decision, paragraphs 6 and 38 to 48 of the Board’s Decision and and [1] to [5] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 2586 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant married KA in around 2005.  In 2006, she gave birth to a son.

(2)  In 2008, KA’s father transferred a piece of land opposite the family home to the applicant and KA before his death.  The applicant and KA built a house on the land (“House”) with their savings.  Thereafter, they and their son lived in the House.

(3)  Since 2011, the applicant and KA frequently quarrelled after she discovered that he had been having an affair.  KA would often beat the applicant up or slap her around.

(4)  The applicant became fed up with KA and decided to come to Hong Kong for employment in 2012. 

(5)  Thereafter, the applicant maintained what little contact that she had with KA only to speak to their son.

(6)  Then, in early 2013, KA informed the applicant that he had sold the House for 150 million rupiah 6 months ago.  The applicant demanded for half of the proceeds.  KA refused, claiming that he had already spent the money.  He threatened not to let the applicant see their son again, to divorce her and to kill her if she insisted on fighting for their son or the money.

(7)  They have not spoken since that telephone call in early 2013.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant last arrived in Hong Kong on 26 March 2015 to work as a foreign domestic helper.  After the premature termination of her contract on 28 June 2015, she did not leave with 14 days and overstayed since 13 July 2015.  She surrendered to the Immigration Department on 28 August 2015.

6.  The applicant raised the NRF Claim by written representation dated 9 May 2016 and completed a Non-Refoulement Claim Form dated 15 March 2018 (“NCF”).

Director’s Decision

7.  After considering the information provided by the applicant in the NCF and at the screening interview on 4 April 2018, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)  First, there are no substantial grounds for believing that there will be any real or substantial risk of harm from KA.  There was no further episode of violence after 2011.  The applicant was able to freely travel within Indonesia and to other countries without harm or hindrance.  There is no evidence to suggest that KA still harbours an intention to harm the applicant given that, on her own account, KA seldom contacted her after selling the House.  Indeed, the applicant cannot recall when KA last contacted her. 

(2)  Second, the availability of reasonable state protection would lower or even negate the risk.  The applicant has never sought protection from the police or other authorities in Indonesia, thinking that the police would not assist in what was essentially a family matter.  However, 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.  And there are channels for complaints against police misconduct.  There are also NGOs in Indonesia that offer assistance to women in need.

(3)  Third, the perceived risk is localised and can be reduced by internal relocation within Indonesia.  The applicant, an able-bodied adult with over 13 years of domestic and overseas working experience, would suffer little or no hardship in moving to say Jakarta or Surabaya.

Appeal to Board and Board’s Decision

8.  The applicant appealed to the Board, which conducted a rehearing of the NRF Claim on 20 August 2018.  The applicant was present to give evidence and answer the Board’s questions through an interpreter.

9.  The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection. 

10.  On the facts put forward in support of the NRF Claim, the applicant is not

(1)  a victim of the state or any public official acting in an official capacity and does not face a risk of being tortured either physically or mentally or discriminated against for any reason under section 37U(1) of the Ordinance;

(2)  facing any BOR 3 risk of being subjected to CIDTP if returned to Indonesia;

(3)  at any BOR 2 risk that she will have the death penalty imposed on her or otherwise be arbitrarily deprived of her life; or

(4)  asserting a fear of persecution or persecution for a Convention reason.

11.  Lastly, while accepting that the applicant had suffered abuse from KA in the past and that they are now divorced, the Board was satisfied that there are effective measures in place in Indonesia, such as a functioning legal system and legal aid scheme, to protect the applicant should KA threatened her again in the future.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 8/2019 on 3 January 2019, the applicant applied for judicial review of the Board’s Decision[6] without stating any proposed ground for judicial review.  The supporting affirmation of the same date merely exhibited copies of the hearing bundle before the Board and the Board’s Decision.

13.  The applicant did not request an oral hearing. The Judge accordingly dealt with the application on paper.  He refused leave for the reasons set out in [10] to [14] of the Form CALL-1:

“10. On 3 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached copies of the decisions and her hearing bundle for her appeal before the Board but without putting forward 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 Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11. 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.

12. In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her 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.

13. 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.

14. 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

14.  By the notice of appeal filed herein on 8 September 2021, the applicant appealed against the refusal of leave for judicial review, merely stating that she wished to challenge the Judge’s Decision without setting out any ground of appeal.

15.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 21 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.

16.  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.

17.  The hearing date on 22 November 2021 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.

Discussion

18.  In view of the way in which the applicant conducted the leave application before the Judge and the appeal before this court, we can dispose of this matter shortly.

19.  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)]. 

20.  The applicant simply did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality on the part of the Board in making the Board’s Decision.  The intended application for judicial review was therefore hopeless and leave was rightly refused.

21.  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 shall 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)].

22.  Given the complete lack of merits of the proposed application for judicial review, we cannot find fault with the Judge’s Decision to refuse leave.  The applicant certainly did not in the notice of appeal or the supporting affirmation identify 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.

23.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied they are both in order.

Disposition

24.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.