RE PADERNAL RINA GORTAYO

CACV 196/2020

[2021] HKCA 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 196 OF 2020

(ON APPEAL FROM HCAL NO. 1625 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung dated 5 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 31 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong on 20 August 2012 to work as a foreign domestic helper.  She overstayed after her contract was terminated prematurely.  She surrendered to the Immigration Department on 14 August 2015 and lodged a non-refoulement claim on 22 June 2016. 

3.  The applicant’s claim was based on threats from her ex-husband.  The details of the applicant’s claim have been summarised by the judge at [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 4 January 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Board.  After a hearing on 13 June 2018, the Board dismissed the appeal on 31 July 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [50] of the Board’s Decision, the Board accepted that the applicant’s ex-husband attacked her while they were married, including in one occasion he threatened her with a gun.  However, the Board found that she fabricated the evidence regarding the continuing contact with her ex-husband and that the applicant’s own evidence indicated that she had no contact with him for several years.  The Board found that her ex-husband did not have the means or motivation to cause her harm upon her return to the Philippines.  The Board was also satisfied at [53] that state protection would be available for the applicant.

The judge’s decision

7.  The applicant filed a Form 86 on 13 August 2018 which contained no ground for seeking relief.

8.  In her affidavit in support of the leave application dated 13 August 2018, the applicant deposed that:

“I would like to reject and review the decision made by [the Board]. They disregard my dangerous situation.”

9.  In her affidavit dated 3 July 2019, the applicant deposed that:

“I am requesting for review and appeal of any non-refoulement claim I filed against the Immigration Officers decision on which they refused on 3 July 2018…”

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [20] of the CALL-1 Form:

“The Director’s Decision

11. In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

12. The applicant has not set out any exceptional circumstances.

13. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

14. The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

15. The applicant appeared before me. She confirmed that she was able to speak freely and tell her stories fully before the Immigration officer and the Adjudicator. She could read English herself and she understood the Board’s Decision.

16. I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

17. It is quite obvious that the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim.

18. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board was in error in coming to its conclusion.

19. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

20. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

11.  In the Notice of Appeal filed on 16 June 2020 the applicant contended that:

“I would like to reject and review the decision made by [the Board] on my non-refoulement case. They disregard my dangerous situation.”

12.  The applicant agreed by a letter of 16 June 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by the court on 22 August 2020 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  We take this opportunity to reiterate the importance of filing skeleton submissions as per the court’s directions.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of the appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement 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 an oral 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 with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 24 November 2020 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 materials already filed with the court.

Discussion

15.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have repeatedly stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.