RE SITI KHOTIMAH

CACV 527/2018

[2019] HKCA 850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 527 OF 2018

(ON APPEAL FROM HCAL NO 316 OF 2018)

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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.  By a judgment dated 8 April 2019 ([2019] HKCA 401) (“the Judgment”), this Court (Hon Chu, Barma and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 12 October 2018 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”).  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 1 December 2017 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 10 December 2015 (“the Director’s First Decision”) and 20 January 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.  The applicant now seeks leave to appeal to the Court of Final Appeal.

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

3.  By a Notice of Motion dated 16 April 2019, the applicant applied for leave to appeal against the Judgement to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“I am not satisfied from to the decision. This is lead toward my life more danger in my home land in Indonesia because I am fear of my life to return back to my country Indonesia. So please help me to stay till my problem finished in Indonesia.” [sic]

5.  In compliance with the directions given by Master Au-Yeung on 18 April 2019, the applicant lodged her written submission on 29 April 2019.  In her written submission, the applicant elaborated that her case was not fully considered on the following grounds:

“3. I request for hearing for appeal at the court of appeal. I was not aware I had to lodge skeleton submissions I did not know the failure to submit skeleton submission mean no oral hearing.

4. since I did not have oral hearing for application for leave to apply for judicial review I should have hearing this time.

5. it is unfair that the high court judges never heard me in person.

6. there was lack of legal representation for BOR2 assessment. I believe this is essential because it is part of department’s assessment on my claim.

7. the lack of legal representation for BOR2 assessment, paired together with the failure to provide me with sufficient language assistance given my vulnerability in terms of language proficiency, has been detrimental to my case I believe such assistance is essential as it was part of the department’s assessment on my claim. The department considered my BOR2 without referring my case to the duty lawyer service as opposed to my all other applicable ground.

8. there is no evidence showing otherwise that I should not be entitled to the representation as the high standard of fairness laid down by previous court were directed toward legal representation for the assessment before the director.

9. the further decision was determined by the director of immigration without ensuring that I am aware of my rights and for the definitions behind BOR2. Further, the lack of language assistance and legal representation meant that I had no understanding how the lack of legal representation had caused prejudice. The process or the reasons for rejecting my claim to date.

10. I have demonstrated how the lack of legal representation had caused prejudice the court has twisted the idea of seeking representation from the duty lawyer service as the duty lawyer service was provided to me by a referral from the director of immigration to the duty lawyer service should there be change in policy or method of referral, I should be notified as a self‑represented litigant.

11. all acts of the authorities have been highly discriminatory and unfair to me.”[sic]

6.  Despite the lengthy submissions, the applicant essentially advanced three grounds: (a) the lack of oral hearing; (b) the lack of language assistance; and (c) the lack of legal representation in her BOR2 assessment.

7.  We have duly considered the applicant’s Notice of Motion and her written submission.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

8.  First of all, we have dealt with the applicant’s abandonment of right to an oral hearing at [2] ‑ [3] of the Judgment.  The notice of hearing was posted to the applicant on 22 January 2019 and the applicant was directed and warned of the result of failing to lodge the skeleton submission.  There was no evidence suggesting that the applicant did not receive the notice of hearing.  Further, the applicant filed her notice of motion and written submissions in hand-written English.  Either the applicant is proficient in English or she had language assistance.  Therefore, she should be able to understand the direction and warning in the notice of hearing.

9.  Secondly, the rest of the grounds advanced in the applicant’s written submissions were already dealt with by the Deputy Judge.  He had found the lack of language assistance or legal representation was not reasonably arguable ground for leave to be granted.  He also found that the high standard of fairness was achieved in the Board’s Decision: see [14] ‑ [15] of the Deputy Judge’s Decision.  We do not find any legal error in his decision: see [18] of the Judgment.

10.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  None of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds.

12.  In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision.  None of the questions raised by the applicant in the Notice of Motion or in her written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

13.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her Notice of Motion.

CACV 527/2018

[2019] HKCA 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 527 OF 2018

(ON APPEAL FROM HCAL 316 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refusing leave to apply for judicial review dated 12 October 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2262.  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 1 December 2017 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 10 December 2015 (“the Director’s First Decision”) and 20 January 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 5 March 2019.   The applicant was directed to lodge three sets of skeleton argument by 4 February 2019 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 22 January 2019. 

3.  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 to be 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.

4.  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

5.  The applicant is a national of Indonesia.  She entered Hong Kong on 19 July 2012 with permission to work as a domestic helper until the expiration of the employment contract or within 14 days after early termination.  Her employment contract was terminated prematurely on 27 February 2014 and thus she must depart Hong Kong on 14 March 2014.  She stayed illegally until 24 April 2014 when she was arrested by the police.  She lodged a non-refoulement claim on 30 April 2014.

6.  The details of the applicant’s personal background and her claim were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 1 - 17 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that if she were to return to Indonesia, she would be harmed or killed by some unknown people from a bank. She claimed that she received SMS messages from some unknown person who threatened to kill both her and her husband if she failed to repay her husband’s loan.

The Director and the Board’s Decisions

8.  By the Director’s First Decision and the Director’s Second Decision, the Director decided against the applicant’s claim (collectively “the Director’s Decisions”).  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

9.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 17 October 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  The Board found contradicting accounts in the applicant’s claim and thus there was no reliable evidence that her life was ever threatened (paragraphs 60 - 70 of the Board’s Decision).  In addition, the Board found that there was no evidence suggesting that internal relocation was not available to the applicant (paragraph 73 of the Board’s Decision).  Thus, the Board dismissed the appeal.

The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 28 February 2018 seeking leave to apply for judicial review against the Director’s Decisions and the Board’s Decision.  In her supporting affirmation filed on the same date, the applicant advanced the following grounds for judicial review which were summarised by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision:

“12. On 28 February 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she set out her grounds for her intended challenge which can be summarized as follows:

(1) Procedural impropriety in the adjudicator’s failure to realize her fear and her assertion in her claim and for rejecting her account on her credibility;

(2) Lack of legal representation or assistance for her in her appeal before the Board; and

(3) Unreasonableness in the adjudicator’s decision not to have found that there is substantial ground for believing that she would be in danger of being subjected to torture upon her return to Indonesia.”

11.  The applicant’s leave hearing took place on 21 August 2018.  The applicant confirmed the grounds for judicial review in the Form 86 and her supporting affirmation.  Having considered the documents and the applicant’s submissions, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in paragraphs 13 ‑ 19 of the Deputy Judge’s Decision:

“13. The first and third grounds are just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case, or how the adjudicator had erred in his decision or in his findings as to her credibility, for which the adjudicator did make a careful and thorough analysis with proper reasoning in paragraphs 57 ‑ 73 of the Board’s decision. In the premises I do not find any merit in these complaints of the applicant.

14. As for her complaint in ground (2) of not being provided with legal representation or assistance in her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar [2004] HKCFA 43; (2004) 7 HKCFAR 187 nor the judgment of B v Director ofImmigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah[2018] HKCA 14, Re Zahid Abbas[2018] HKCA 15, Re Tariq Farhan[2018] HKCA 17, Re Lopchan Subash[2018] HKCA 37, and Re Zafar Muazam[2018] HKCA 176.

15. The applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty and with the assistance of an interpreter. I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, for which the court will not usurp their role as primary decision makers, and in the absence of any legal error or procedural unfairness or irrationality identified by the applicant in their decision, judicial review is not to be treated as an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda PushpaKumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

17. Further, as it has been established by both the Director and the Board in their decisions that the risk of harm from her husband’s creditors if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Indonesia, there is simply no justification to afford her non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2012] HKCA 502; [2013] 1 HKC 526.

18. 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.

19.   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.”

Grounds for appeal

12.  The applicant filed a Notice of Appeal dated 24 October 2018 to appeal the Deputy Judge’s Decision.  In the Notice of Appeal, the applicant referred to a 3-page handwritten “Appeal Ground”, in which the applicant merely repeated the basis of her claim that once she was to return to Indonesia, she would be harmed or killed.  She also complained that there was no fairness in the Board’s investigation which was based solely on the internet search and that there was no real reason given by the Board.  She cited the definition of torture in support.  She has however not identified what error she said the Deputy Judge had committed in the Deputy Judge’s Decision.

Discussion

13.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524 at paragraph 14.

14.  Firstly, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

15.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  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, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the 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.

17.  In light of the above, it is thus incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any error in the Deputy Judge’s Decision.  There are no viable grounds of appeal.

18.  In any event, we have looked at the decisions of the Board and of the Deputy Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s decision.

19.  The applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.