RE DWI NANI MARYANI

CACV 553/2021

[2022] HKCA 1551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 553 OF 2021

(ON APPEAL FROM HCAL NO 135 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  set out in the Form CALL-1 dated 26 November 2021, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 3574).

2.  The intended judicial review is to challenge against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 10 January 2019 (“the Board’s Decision”)  and the decision of the Director of Immigration (“the Director”)  dated 18 January 2018 (“the Director’s Decision”)  rejecting her non-refoulement claim.

3.  The appeal was listed to be heard on 21 February 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 24 January 2022 and was warned that if she failed to do so, she would be deemed to have waived her right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 28 December 2021.

4.  On 26 January 2022, this Court further directed that unless the applicant lodged with the Court two sets of skeleton argument on or before 14 February 2022, the hearing would be vacated and the appeal would be determined on paper without further directions.  The applicant did not lodge any skeleton argument in support of her appeal.

5.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the Court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

6.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  We have proceeded to consider this appeal on paper based on the available materials.

Background

7.  The applicant is a national of Indonesia.  She last arrived in Hong Kong on 4 March 2010 to work as a foreign domestic helper until 7 July 2011.  Her contract terminated prematurely on 10 August 2010 and she did not depart as required and has overstayed since 25 August 2010.  She was arrested by the police on 15 February 2012.  By the written representations dated 27 February 2017 and 6 March 2017, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father or his creditor for failing to remit money to her father to assist him with the repayment of his loan.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] - [3] of the Leave Decision.

8.  By a Notice of Decision dated 18 January 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated.

9.  The applicant then appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 29 October 2018 and gave evidence.  The Board dismissed her appeal on 10 January 2019.  The Board found that the alleged threats from her father were only verbal in nature.  The applicant also did not know the identity of the creditors and their threats were purely hearsay.  The Board also found that the dispute between her father, the creditor and her was purely private in nature.  The Board further found that state protection and internal relocation would be available to the applicant.  The Board thus concluded that the applicant did not have any real risk of being subjected to harm or ill-treatment as alleged and she failed to substantiate her claim on the applicable grounds and dismissed her appeal.

The Leave Decision

10.  On 14 January 2019, the applicant filed her Form 86 and supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  However, she did not put forward any ground of review.

11.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [8] - [12] of the Leave Decision:

“8.   On 14 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 or in her supporting affirmation of the same date in which she merely attached the hearing bundle of her appeal before the Board 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 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.

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 fact is that it has been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.  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.

12.  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.”

The Appeal

12.  On 7 December 2021, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision.  In her Notice of Appeal, she only stated that she wanted to challenge the Leave Decision without providing any ground of appeal or identifying any error in the Leave Decision.

13.  As mentioned above, contrary to the directions of this Court dated 28 December 2021 and 26 January 2022, the applicant did not lodge any written submissions.

Discussion

14.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

16.  Nowhere in her Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision.  As such, there is simply no viable ground of appeal and the appeal must fail on this basis alone.

17.  For the reasons given above, the applicant’s appeal is a non-starter and has no merit.  Accordingly, we dismiss the appeal.