RE VILLAROSA RHEA LIMBAGA

CAMP 104/2023, [2024] HKCA 95

On Appeal From [2021] HKCFI 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2834 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1) Renewed application for extension of time to appeal

1.  On 11 December 2018, the applicant issued her application for leave to apply for judicial review by Form 86 in HCAL 2834/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 20 September 2018 which dismissed her appeal (out of time) against the decision of the Director of Immigration (‘the Director’) dated 15 January 2018 rejecting her non-refoulement claim. Deputy High Court Judge To refused to grant leave on 2 July 2021.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 16 July 2021). Being out of time for over one and a half year, the applicant took out an application on 26 January 2023 before the Judge requesting an extension of time to appeal. The Judge on 27 February 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 15 March 2023, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

5.  Briefly stated, the applicant is a Philippines national. She entered Hong Kong as a foreign domestic helper but she overstayed after her employment contract was prematurely terminated. She raised her non-refoulement claim on 20 February 2017 alleging that she would be harmed or killed by her boyfriend if she returned to her country.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), BOR Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.  The Board dismissed the applicant’s late appeal/petition on 20 September 2018. The Board based its decision under section 37ZS and/or section 37ZT of the Immigration Ordinance (Cap. 115) (‘Ordinance’). The Board did not go into the merits of the applicant’s case. The Board’s decision was :

‘ 7. Section 37ZT provides:…

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of -…

(a) the statement of reasons…

(b) any other relevant matters of fact within the knowledge of the Board

…

10. The Board finds the Appellant’s reason for the late filing of her appeal unsatisfactory. While the Appellant submitted that an interpreter was not present when she first attended her attorney’s office, there is nothing in the very limited information she has provided to indicate whether an interpreter was present (or not) during her second meeting at her attorney’s office on 24 January 2018, several days prior to the deadline for filing her appeal or why after this subsequent meeting she was unable to file her appeal prior to the expiration of the 14-day period. The Board notes in particular, based on the Appellant’s statement, she appeared to be in contact with an attorney and was therefore in a position to obtain advice or assistance in filing her appeal, regardless of whether she had the assistance of an interpreter.

11. The Board finds the Appellant’s statement does not give adequate reasons for her delay in filing her appeal or sets out any special circumstances to explain her failure to file within time. As such, the Appellant’s application for the late filing of the Notice of Appeal/Petition non-refoulement claim is not allowed.’ (emphasis added)

5) Decisions of the Judge

8.  In his decision dated 2 July 2021, the Judge considered the applicant’s leave for judicial review application without a hearing. The Judge in his decision held :

‘13. The Board could not be criticised for its conclusion. The Board may only consider whether to allow the late filing on the basis of the statement of reasons stated in the notice of appeal filed by the applicant and the relevant matters of fact within the Board’s own knowledge. Given the scanty information provided by the applicant, it was not known what happened on the applicant’s two visits. It was not known whether she arrived during office hours, whether there was an interpreter or staff present in the secretariat, what enquiries she had taken in connection with filing her notice of appeal, and what steps she had taken for that purpose. One would expect some credible and reasonable explanation would have been given explaining what happened on the two visits and why the applicant could not have lodged her notice of appeal and why she managed to do so on 5 February 2018. But there was none from the applicant.

…

20. Here, the delay is not serious, but the reason given by the applicant is fabricated and invalid. The Board followed the procedure set out in Section 37ZT and the Petition Guide to the letter. Even though the Board did not mention Begum, it effectively adopted the three-stage approach in that case…The Board committed no error of law…’

9.  In his decision dated 27 February 2023, the Judge referred to his decision of 2 July 2021 at [11-19], and held that the applicant had ‘an appalling record of defaults’. The Judge held that he had gone on to consider the merits of the applicant’s case. He held that even if her late filing of notice of appeal to the Board was allowed, her appeal to the Board was ‘doomed to fail’ for want of merits. The application for extension of time for appeal was refused.

6) Legal principles

10.  In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

(4) prejudice to the putative respondent if extension of time was granted.

7) Analysis

(1) Length of delay and reasons for the delay

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.  The deadline to appeal the 2 July 2021 decision was 16 July 2021. The applicant was over one and a half years late when she filed her extension of time to appeal application on 26 January 2023. The applicant did not provide any proper explanation for her substantial delay.

(2) Prospect of the intended appeal

13.  The applicant’s summons and affirmation do not contain any proper ground of appeal other than the bare assertion that she did not receive the decision. In the applicant’s written submissions, the applicant made bare assertions without evidence in support that are within the province of the Board.

14.  However, we are concerned about the manner in how the Board dealt with the applicant’s appeal. In Re Qasim Ali [2019] HKCA 430, Lisa Wong J in delivering the decision of the Court of Appeal held :

‘ 9. Section 37ZT then continues to provide:

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.” (emphasis added)

…

23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

28. We are mindful of the fact that this is not exactly how the applicant argued this appeal in his notice of appeal or submission.

29. As stated in paragraph 19 above, the Court of Appeal considers the decision of the judge at first instance in light of the grounds of appeal raised by the applicant. We have no intention to derogate from such principle. Nevertheless, this Court has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice. See, for example, Re MD Zahidur Rahman Manik, CACV 314/2018, [2018] HKCA 766, 29 October 2018; and Re Khan Kamal Ahmed, supra.’ (emphasis added)

15.  We are aware that section 37ZT(2)(b) of the Ordinance has been amended in 2021 and it no longer contains the words ‘any other relevant matters of fact within the knowledge of the Board’. However, in the Board’s decision of 20 September 2018 at [7], such words were quoted verbatim meaning that the Ordinance was not amended at that time. The reasoning of Lisa Wong J in Re Qasim Ali applies. The Board did not consider the merits of the applicant’s case. The Judge in his decision in 2021 held that even if the Board was to consider the merits the applicant was ‘doomed to fail’. However, the principle is that the task of fact finding was within the province of the Board. It is clear that the procedural irregularity here is that the Board did not consider the merits of the applicant’s case and proceeded to refuse the applicant’s late filing of her notice of appeal. The Board should have, under section 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal albeit on paper without a hearing, regardless of the procedural breaches or the lack of explanation therefor.

16.  For these reasons, we are of the view that the intended application for judicial review is reasonably arguable.

8) Disposition

17.  As the intended appeal is reasonably arguable, we will grant extension of time to appeal to the applicant. The applicant is required to file a notice of appeal within 28 days from the date of this decision.