RE SUSANA

CACV 31/2020

[2020] HKCA 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 31 OF 2020

(ON APPEAL FROM HCAL NO. 2640 of 2018)

________________________

________________________

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 14 August 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 7 January 2020 refusing her leave to apply for judicial review.

2.  On 2 September 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. The applicant has also put in a letter dated 14 September 2020 in response to the Registrar of Civil Appeals’ direction to lodge written submission in support of the application.

3.  Having considered the applicant’s notice of motion and letter, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the materials before us.

4.  The facts of this case have been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

6.  The notice of motion contained the following grounds of appeal:

(1)  The applicant still has problem in her country.  If she returns, her life will become dangerous.  The applicant was tortured by her ex-husband and had been hospitalised.  The loan shark is also looking for the applicant and will harm her.

(2)  The applicant never has a proper opportunity to explain her problem, and an oral hearing regarding her supporting documents, including hospital discharge certificate.

(3)  The applicant asks for a solution to save her life from her enemies.  She hopes to live peacefully without problems.

7.  In her letter, the applicant reiterated that she could not return to her country at this moment as her life would be in danger due to the threats from her ex-husband and his family.  She stated that her ex-husband had once tried to kill her, and had tortured her many time before.  In support of her case, the applicant attached a document to her letter which was in the Indonesian language.  We had through the Court Language Section obtained an English translation prepared by an Indonesian translator. The document is a doctor certificate dated 16 August 2002 certifying that the applicant was examined on the same day and found to have bruises on her lower back and no treatment is needed.  

8.  The grounds given in the notice of motion do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal. 

9.  Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Further, all these grounds do not address this Court’s reasons for dismissing the appeal given in [12] to [14] of our judgment.  It is also incorrect to say that the applicant has not been afforded a proper opportunity to explain her case.  She was legally represented in the interview with the Department of Immigration.  The Board as well as Deputy High Court Judge Lung had conducted oral hearings to hear her appeal and application.  Her appeal to this Court was listed for an oral hearing, which was, however, vacated due to her failure to comply with the Court’s order to lodge written submission.

10.  Regarding the assertion of danger and threat to her safety if refouled, for the reasons we give in [12] and [13] of our judgment, this does not afford a basis for granting leave to appeal to the Court of Final Appeal.  As for the doctor certificate, it is unclear whether this was provided to the Director or to the Board.  If it was not previously provided to the Director or the Board, as pointed out in [14] of our judgment, if the applicant wishes to rely on it, she can submit it to the Director of Immigration and seek a re-consideration of her claim.

11.  For the above reasons, the applicant’s intended appeal to the Court of Final Appeal is unarguable.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).  Accordingly, we dismiss the notice of motion.

CACV 31/2020

[2020] HKCA 684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 31 OF 2020

(ON APPEAL FROM HCAL NO. 2640 of 2018)

________________________

________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 7 January 2020 refusing her leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 19 March 2018 rejecting her non-refoulement claim and also the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 29 October 2018 dismissing her appeal against the Director’s decision.    

2.  The applicant’s appeal was scheduled to be heard on 10 August 2020.  The applicant was directed to lodge her written skeleton argument by 13 July 2020 and further warned that if she failed to do so, she shall be deemed to have waived her right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 22 May 2020 and the Notice of Hearing dated 19 June 2020. 

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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.  In the present case, as the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials. 

4.  The applicant is an Indonesian national.  She last entered Hong Kong on 17 October 2008 and was given permission to remain as a domestic helper until 5 September 2010 or within 14 days of the termination of her employment contract, whichever is earlier.  On 3 May 2009, her employment contract was terminated.  She did not depart and overstayed in Hong Kong.  She was arrested by the police on 16 July 2009.  In August 2009, she made a torture claim, which was rejected by the Director on 15 November 2011.  There was no appeal against the decision.  Later on 22 January 2014, the applicant made a non-refoulement claim.

5.  The applicant’s claim is based on her fear of being harmed or killed by her former husband and his creditor(s).  Her case was set out in detail in [9] of the Director’s decision and [25] to [53] of the Board’s decision.

6.  In brief, the applicant claimed that her former husband was an alcoholic and abusive person, and she had a difficult relationship with him after they had a daughter.  She said he frequently assaulted her causing injuries to her on some occasions.  To avoid him, she came to Hong Kong to work as a domestic helper in July 2006, but he kept on demanding money from her.  She found out in 2008 that he had married another woman and sold her house.  When she told him she wanted a divorce, he threatened to kill her.  Nevertheless, she went ahead and obtained a divorce in February 2009.  The claimant learnt from her mother that her former husband continued to go to her maiden home to look for her.  It was also the claimant’s case that in 2003 her former husband took out a loan in her name from a loan shark and had failed to make repayment.  The loan shark(s) came to her maiden home every month to demand for repayment, and had threatened to kill the applicant if she were to return home.

7.  By his decision dated 19 March 2018, the Director rejected the applicant’s claim having regard to the persecution risk[1], BOR 3 risk[2] and BOR 2 risk[3] grounds. The Director did not assess on the torture risk[4] ground in light of the earlier rejection of the applicant’s torture claim (see [4] above).

8.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 13 September 2018 during which the applicant declined to answer questions from the Board.  By its decision dated 29 October 2018, the Board dismissed the appeal.  In short, the Board was not satisfied as to the credibility of a number of aspects of the applicant’s claim.  It noted that there was no independent information/evidence or documentation to support or corroborate aspects of her case, such as medical treatment document regarding the injuries inflicted by her former husband.  The Board did not accept the applicant’s claim that she was harmed, mistreated and threatened by her former husband.  It also did not accept her claim about being pursued by loan shark(s) in Indonesia.     Having considered the country of origin information (“COI”), the Board was further of the view that state protection and internal relocation options were reasonably available to the applicant.  The Board accordingly concluded that none of the available grounds for non-refoulement was made out.

9.  The applicant filed her Form 86 together with a supporting affirmation on 22 November 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  The Form 86 did not set out any ground for seeking relief.  The supporting affirmation stated that it was procedurally unfair that the applicant did not have legal and language assistance in her appeal against the Director’s decision.  It was also said that consideration should have been given to the applicant as a member of a particular social group, namely, women suffering at the hands of abusive husband.  It was further stated that despite the Director’s and the Board’s findings on availability of state protection, the applicant’s life was genuinely in danger if she were to return to Indonesia.    

10.  At the applicant’s request, an oral hearing was held on 5 June 2019 to hear the application.  By his decision given on 7 January 2020, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success.  He considered that, as the applicant had appealed the Director’s decision to the Board, and in the absence of exceptional circumstances, it was not open to her to judicially review the Director’s decision.  As to the Board’s decision, his reasons for refusing leave to judicially review it are as follows ([16] to [21] of the Form CALL-1 dated 7 January 2020, [2020] HKCFI 1170):

“16. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. She could read English herself.

17. I put the Board’s findings to her for her comments. She said that she had no comments.

18. It is obvious that as the Board rejected her evidence in support of her claim. The Director and the Adjudicator are to assess the merits of the case. Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

19. The applicant does not have the absolute right of free legal representation at every stage of the proceedings. It would be sufficient if she had legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

20. All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court.

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

11.  The applicant filed a Notice of Appeal on 21 January 2020 to appeal the Judge’s decision, in which she gave the following as the grounds of appeal:

(1) Her life is still threatened by her ex-husband and loan shark.  If she returns to Indonesia, her life is uncertain.

(2) She will obtain the loan agreement and hospital discharge certificate as soon as possible.  

12.  These are not viable grounds of appeal.  First, the focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law, had failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].  In the present case, the applicant has not identified any error in the Judge’s decision and reasons.

13.  Second, the primary decision makers are the Director and the Board.  It is not the Court’s function in judicial review proceedings or in appeals to re-assess the credibility or merits of an applicant’s claim.  The Court will only intervene if it can be shown that there are errors of law, or procedural unfairness, or irrationality in the primary decision maker’s decision: Nupur Mst v Director of Immigration, supra.  In the present case, the applicant has not pointed to any error in the Board’s assessment of her claim. In the light of the Board’s rejection of her claim as not credible in a number of aspects and the finding that state protection and internal relocation are reasonably open to her, the applicant’s assertion that she would be in danger if refouled to Indonesia cannot stand. 

14.  Third, if, as suggested in the notice of appeal, the applicant has documents or new evidence that can substantiate her claim, she may provide them to the Director and seek a reconsideration of her claim.  It is not for the court to review the merits of the claim based on new additional materials that had not been considered by the Director or the Board.   

15.  For the above reasons, the appeal has no merits.  Accordingly, we dismiss the appeal.