RE SULISTYOWATI DWI KURNIA AND ANOTHER

CACV 584/2018

[2020] HKCA 456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 584 OF 2018

(ON APPEAL FROM HCAL NO. 815 OF 2017)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 5 September 2019 ([2019] HKCA 1009) (“the Judgment”), this court dismissed the applicants’ appeal against the decision of Campbell-Moffat J dated 11 December 2018 ([2018] HKCFI 2214), refusing leave to apply for judicial review. 

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 8 September 2017 and the decisions of the Director of Immigration dated 26 February 2016 and 16 December 2016 rejecting the 1^st applicant’s non-refoulement claim, as well as the decision dated 24 April 2017 rejecting the 2^nd applicant’s non-refoulement claim.

3.  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.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.  The applicants filed the Notice of Motion on 31 October 2019 to apply for leave to appeal against the Judgment to the Court of Final Appeal.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (“HKCFAO”), the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 3 October 2019.  The applicants are therefore 28 days out of time.

5.  Under section 22(1)(b) of the HKCFAO, leave to appeal to the Court of Final Appeal will only 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. 

6.  Further, as the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the court is entitled to take into account (1) the length of the delay, (2) the reasons for the delay, (3) the chances of the appeal succeeding if an extension of time is granted, and (4) the degree of prejudice to the respondent if the application is granted. See: Hong Kong Civil Procedure 2020, Vol.1, paragraph E2/24/1 and the authorities cited therein. 

7.  For the following reasons, the applicants have failed to show good grounds for an extension of time to be granted.

8.  The delay of 28 days is a significant one, in particular when considered in the context that the statutory period for the Notice of Motion to be filed is by itself also only 28 days. 

9.  The applicants have not provided any explanations in this application for the delay.  However, we note from the court’s record that the Judgment which was originally sent to the applicants by ordinary mail at the address provided by them was returned on 23 October 2019 marked, “no such person”.  A copy of the Judgment was resent again on 24 October 2019 to the applicants at the same address after the judicial clerk had called and confirmed with the 1^st applicant that the address was correct.  Thereafter, the applicants filed the Notice of Motion on 31 October 2019.  It shows that the applicants can in fact receive the Judgment at that address.  It is therefore unclear as to why the first mail was returned and marked with “no such person”, especially when the applicants have also not sought to provide any plausible explanations for that.  Be that as it may, given these circumstances, we are prepared to give the benefit of doubt to the applicants and accept that the delay is excusable.

10.  We are however of the view that the intended appeal to the Court of Final Appeal is hopeless.  The applicants’ stated ground of appeal in the Notice of Motion is only that “The Decision is Unreasonable”.  They have not identified any errors (let alone any particularised errors) in the Judgment to support the intended appeal.  This is not a viable ground of appeal, and the intended appeal has no prospect of success.  It would be futile to extend time.

11.  In the premises, and in any event, the applicants have failed to identify any question of great general or public importance that 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.  Plainly, the statutory requirements under s.22(b) of the HKCFAO are not met.    

12.  Accordingly, we refuse to extend the time for the applicants to apply for leave to appeal, and dismiss the Notice of Motion.  

The applicant acting in person

CACV 584/2018

[2019] HKCA 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 584 OF 2018

(ON APPEAL FROM HCAL 815 OF 2017)

_______________

_______________

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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 the applicants’ appeal against the decision of Madam Justice Campbell‑Moffat (“the Judge”) as set out in Form CALL‑1 dated 11 December 2018 [2018] HKCFI 2214, refusing the 1^st applicant and 2^nd applicant leave to apply for judicial review (“the Judge’s Decision”).  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 8 September 2017 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 26 February 2016 (“the Director’s First Decision”) and 16 December 2016 (“the Director’s Second Decision”) rejecting the 1^st applicant’s non‑refoulement claim.  In the Board’s Decision, the Board also rejected the appeal against the Director’s decision dated 24 April 2017 rejecting the 2^nd applicant’s non-refoulement claim (“the Director’s Third Decision”).

2.  The 2^nd applicant, who was born on 20 September 2016, is the son of the 1^st applicant.  His non-refoulement application was filed by the 1^st applicant adopting the same personal background and claim as the 1^st applicant.  In other words, the claim and appeal of the 2^nd applicant stand and fall with those of the 1^st applicant.

3.  For the sake of convenience, we shall refer the Director’s First Decision, the Director’s Second Decision and the Director’s Third Decision collectively as “the Director’s Decisions”.

4.  The appeal was listed to be heard on 27 August 2019.  The applicants were directed to lodge three sets of skeleton argument by 30 July 2019 and were warned that if they failed to do so, they would be deemed to have waived their rights to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicants by the Notice of Hearing dated 25 June 2019.

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 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.

6.  As the applicants 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 applicants are nationals of Indonesia.  The 1^st applicant entered Hong Kong on 9 August 2009 and remained lawfully as a foreign domestic helper until 25 January 2010.  However, she did not depart and overstayed since 26 January 2010.  She was arrested by the police on 18 January 2013 and lodged a non-refoulement claim on 3 March 2014.  On 20 September 2016, she gave birth to the 2^nd applicant and filed a non-refoulement claim on behalf of the 2^nd applicant on 12 January 2017.

8.  The details of the 1^st applicant’s claim and her personal background were set out in paragraphs 5 - 6 of the Director’s First Decision and paragraphs 1 - 18 of the Board’s Decision.  The 2^nd applicant’s claim and personal background was briefly summarized in paragraph 2 of the Director’s Third Decision.

9.  Briefly stated, the 1^st applicant claimed that if she returned to Indonesia, she would be forced by her parents to marry Tri, who had lent 150 million Indonesian Rupiah to her father, and she also feared that Tri would force her to work as a sex worker.  She also claimed on the 2^nd applicant’s behalf that since the 2^nd applicant was born out of wedlock, he would be killed by his grandparents.

10.  The 1^st applicant said her encounter with Tri started in 1991 ‑ 1992 when Tri came to her house and informed them that her father owed him 150 million Indonesian Rupiah.  Since then, Tri had made constant visits to her home before she left to work in Singapore. In September 2002, when she returned home from Singapore, Tri came again with an unknown male and demanded payment from her father.  However, her father failed to do so.  In around the end of 2003, Tri started threatening and demanding her mother to repay the debt.  The 1^st applicant then came to Hong Kong in order to help settle the debt.  She remitted money monthly to her family and yet her mother told her that some of the money was paid for her sister’s wedding and that the debt was still outstanding.  Her mother told the applicant that she should keep remitting money otherwise Tri would force her to marry him when she returned or force her to work as a prostitute.  She also feared of returning home because her mother had threatened that there was no place for her and her son.

The Director’s Decisions and the Board’s Decision

11.  In the Director’s First Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4]. The Director did not accept that the 1^st applicant was a genuine non-refoulement protection seeker and rejected the 1^st applicant’s claim.  In the Director’s Third Decision, the Director also rejected the 2^nd applicant’s claim on all applicable grounds.

12.  The applicants appealed the Director’s Decisions to the Board.  The appeal was heard on 31 August 2017, during which the 1^st applicant answered questions raised by the Board.  After hearing the 1^st applicant and having considered the materials before it, the Board concluded that the applicants had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed their appeal.

13.  The 1^st applicant confirmed before the Board that she was not harmed or injured by Tri or his men, nor was she threatened by them.  She was only threatened by her mother who, upon hearing her giving birth to an illegitimate child, was so shocked and told her that there was no place for her and her son in the family and that they would be killed if they returned to Indonesia.  The Board found that this was a spontaneous outburst reflecting her mother’s shock.  In any event, there was no evidence showing that the public official or person acting in any official capacity would play any part of inflicting such harm to them.  As a result, the Board concluded that there was no real risk of harm or suffering if the applicant and her son were returned to Indonesia. Further, internal relocation was available to the applicants (paragraphs 37 - 43 of the Board’s Decision).

The Judge’s Decision

14.  The applicants filed a Form 86 on 27 October 2017 seeking leave to apply for judicial review against the Director’s Decisions and the Board’s Decision.  Although the applicants challenged both the Director’s Decisions and the Board’s Decision, the Judge rightly held that since the applicants already took the chance in appealing to the Board, the Director’s Decisions were not amenable to judicial review.  See Re Moshsin Ali[2018] HKCA 549.

15.  The applicants did not provide any grounds of review before the Judge. Nevertheless, the Judge had considered the documents available before her to examine whether there were any grounds to grant leave.  In the end, she concluded that the intended judicial review was not reasonably arguable and stated her reasons at paragraphs 10 - 13 of the Judge’s Decision:

“10. Judicial review is not a rehearing of the merits of the Applicants’ original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicants must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with their application in order to obtain leave to judicially review them.

Grounds of review

11. There were no grounds of review. The Applicants ask for a re-hearing of their appeal. They have not complained of any procedural irregularity, unfairness or unreasonableness. The Applicants have a duty to state the grounds of their intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12. Despite the fact that the Applicants have not submitted any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure by either the Director or Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicants, the Adjudicator engaged in a joint endeavour with the 1^st Applicant (on behalf of herself and her child) and considered all relevant criteria; gave the 1^st Applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

Grounds of appeal

16.  The applicants filed the Notice of Appeal dated 17 December 2018 to appeal the Judge’s Decision. They set down the following ground of appeal:

“the applicant is disagree with the Judgement made by the Hon Mrs. Justice Campbell-Moffat. The Judgement is unreasonable and unacceptable.” [sic]

17.  Except for the bare assentation, the applicants failed to identify any errors alleged to have been committed by the Judge.

Discussion

18.  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.

19.  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.

20.  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.

21.  In light of the above, it is thus incumbent on the applicants to point out with sufficient particularity specific errors allegedly committed by the Judge in assessing the Board’s Decision.

22.  However, as mentioned, the applicants merely stated that the Judge’s Decision was unreasonable and unacceptable but they were unable to provide any alleged errors committee by the Judge in her reasons. These vague and general bare assertions are not viable grounds of appeal.

23.  In any event, we have reviewed both the Board’s Decision and the Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s Decision.

Disposition

24.  For the reasons given above, the applicants’ appeal has no merits at all.  Accordingly, we dismiss the appeal.