RE VALDEZ EVELYN OCHOADA

CAMP116/2020

[2021] HKCA 141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 116 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 1301/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  There are two applications before this court. The first application (made on 4 August 2020) is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung given on 16 April 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 26 June 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 1 September 2016 and 31 July 2017 rejecting the applicant’s non-refoulement claim.

2.  The second application (made on 14 December 2020) is the applicant’s application to join her son to the intended appeal.

3.  Having considered the documents filed by the applicant, we are of the view that both applications may properly be determined on paper.

Background

4.  The applicant is a national of the Philippines.  She entered Hong Kong on 5 March 2010 to work as a foreign domestic helper.  She overstayed after her contract was terminated prematurely on 21 June 2011.  She became intimate with a Gambian asylum seeker in early 2015 and she gave birth to a son by him on 10 January 2016.  She surrendered to the authorities on 15 June 2015.  She lodged a non-refoulement claim for herself on 1 December 2015 and another claim for her son on 23 March 2016.  On 18 May 2016, the applicant confirmed to the Director that she would act for her son in his non-refoulement claim.

5.  The applicant’s claim was based on threats from her husband in the Philippines because she has a son from an extra-marital affair.  The details of the applicant’s claim have been summarised by the judge at [6] of the CALL-1 form.

6.  By a Notice of Decision dated 1 September 2016 (“the Director’s First Decision”), the Director decided against the applicant’s and her son’s claims.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

7.  By a Notice of Further Decision dated 31 July 2017, the Director also assessed the applicant’s and her son’s claims based on the BOR 2 risk^[4], and decided against him.

8.  The applicant and her son appealed to the Torture Claims Appeal Board.  After a hearing on 7 May 2018, the Board dismissed their appeals on 26 June 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

9.  At [43] and [53] of the Board’s Decision, the Board found that the applicant was generally credible.  However, the Board considered that significant time has passed since the last contact between the applicant and her husband in the Philippines and therefore neither she nor her son will suffer from any of the proscribed harms from her husband upon their return.  The Board was also satisfied at [54] that state protection would be available for the applicant and her son.

The judge’s decision

10.  The applicant filed a Form 86 on 6 July 2018 which contained no ground for seeking relief.  No application for judicial review was filed by or on behalf of her son.

11.  In her affirmation in support of the leave application dated 6 July 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [11] of the CALL-1 form:

(1)  the Board’s decision was unreasonable or irrational in the public law sense, or a result of procedural errors or unfairness.  The Board also failed to meet the greater care and duty owed to self-represented claimant;

(2)  the applicant did not receive legal representation or assistance for the appeal to the Board or for the application for leave for judicial review;

(3)  the applicant’s answers in her Non-refoulement Claim Form were not translated to her;

(4)  the applicant’s did not receive the Director’s letter for additional fact in respect of BOR 2 risk; but she received the Director’s Further Decision;

(5)  the Board assessed BOR 2 risk without any legal representation for the applicant;

(6)  the Board’s Decision was not translated to her;

(7)  there was no explanation as to how the Director had exercised the balance on the weight to be given to the Country of Origin Information, some of which were for and some were against her claim; and

(8)  there was no explanation as to how the Board decided that she was not subject to discrimination.

12.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [22] of the CALL-1 form:

“12.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power that this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

13.  Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

14.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

15.  It is obvious that the Board turned down her appeal on the finding of the facts of her claim. Therefore, she has no factual basis in support of her claim.

16.  At the hearing before me, the applicant said that she could read and understand the Hearing Bundle and the Decision herself. She had no complaint against the Adjudicator. She considered that she had had a fair appeal hearing. Grounds (2) and (5) cannot stand as she could read the documents herself. In any event, she was legally represented for the screening process. Her solicitor should have assisted her to give the answers in her Non refoulement Claim Form.

17.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: ‘This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’ Ground (1) fails.

18.  Ground (3) is not believable because if she received the Director’s Further Decision, there is simply no reason for her not receiving the Director’s letter for additional facts. Nor did she provide any additional facts before the Board for its consideration.

19.  The Director was not obligated to hold another screening interview for the applicant for the BOR 2 risk. He could deal with it on the papers, which he had done. Ground (4) fails.

20.  Grounds (6) and (7) fail too because it is the Adjudicator’s discretion as to what weight should be given to which part of the evidence before she came to the conclusion as to the facts of the case. The Adjudicator had set out her reasons in the Board’s Decision.

21.  Having considered the above, I find that the applicant is unable to show that her judicial review has any reasonable chance of success.

CONCLUSION

22.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave for the judicial review. Accordingly, I dismiss her application.”

Application for extension of time for leave to appeal

13.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 5 July 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by the judge on 12 June 2020.

14.  By a summons dated 4 August 2020, the applicant renewed her application for an extension of time to appeal before this court.  In the summons she stated that:

“I would like to inform my life is danger in my origin country Philippines that’s why I am request to court and Director of Immigration could you please save my life and my son life my born in Hong Kong. From the order of [the judge] refusing to grant leave to the applicant to apply for judicial review.”

15.  In the affidavit in support dated 4 August 2020, she deposed that:

“In the order give to the court a more complete picture about my case I would like to adduce decision from [the judge] dated the 12^th day of June 2020 could you please see [the CALL-1 Form and the letter enclosing the form]”

16.  In her skeleton submissions dated 15 October 2020, the applicant submitted that:

(1)  there was a new change of circumstances that has not previously been taken into consideration and she would like to rely on section 37ZO of the Immigration Ordinance, Cap 115 to make a subsequent claim;

(2)  she is “already cohabiting in Hong Kong”;

(3)  it is not safe for her to return to the Philippines, her family will be harmed and killed upon entering the Philippines; and

(4)  the Board failed to make sufficient inquiry, including inquiry with the Indonesian authorities, before finalizing its decision.

Application to join her son to the intended appeal

17.  On 14 December 2020, the applicant filed a summons in which she stated:

“I would like to request to the court and Director of Immigration could you please add my son name in my appeal”

18.  In the statement filed on 14 December 2020, the applicant claimed that:

“Because I want to add my Son name…in my appeal

Before I made an appeal don’t have my son name

Now I want to add my Son name … in my appeal”

19.  The applicant repeated the same matters in a document entitled “draft grounds of appeal” which was apparently filed in support of the application on 14 December 2020.

Discussion

20.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

21.  We will first deal with the application to join the son of the applicant to the intended appeal.  Although both the applicant and her son are subject to the same decisions of the Director and the Board, her son (who was about 2 years old at that time) was not an applicant in the Form 86 dated 6 July 2018. 

22.  The court has power to order a person to be joined as a party under RHC Order 15 rule 6(2) at any stage of the proceedings, including the appellate stage ([24] & [26] of The Ming An Insurance Co (H.K.) Ltd v Chan Man Dun & Anor (unreported, CACV 96/2005, 15 March 2006), per Yuen JA citing Tetra Molectric Ltd v Japan Imports Ltd [1976] RPC 541).

23.  The applicant seeks to join her son to the intended appeal after her application for leave for judicial review has been refused and the judge has already refused leave to appeal out of time.  The applicant did not advance any reason for joining her son to the appeal other than stating that her son’s name was not on Form 86.

24.  The applicant did not explain how the application to join her son falls under Order 15 rule 6(2)(b) or why the discretion should be exercised in her favour.  We note that the judge has already dealt with all of the grounds for judicial review advanced by the applicant and those grounds did not relate to the applicant’s son at all.  Further, even though both the applicant and her son were subject to the same decisions by the Director and the Board, their claims for non-refoulement protection and applications for judicial review merit separate consideration (Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971). 

25.  In our view, the joinder of the applicant’s son will serve no useful purpose as the applicant’s application for judicial review has already been disposed of by the judge.  On the other hand, if the applicant’s son is joined to the intended appeal, he will be deprived of the opportunity to have his grounds for judicial review canvassed in the court below.  In these circumstances, it seems to us that the discretion under Order 15 rule 6(2) should not be exercised in the applicant’s favour.

26.  Further, although the applicant did not mention the capacity in which her son should be joined to the intended appeal, from the header of the summons dated 14 December 2020 it seems that she intended to join her son as one of the applicants for judicial review which would give rise to two additional problems.

27.  The first problem is that more than three months have passed since the Board’s Decision and the applicant has failed to explain why her son should be granted leave for judicial review well outside of the time limit.  The second problem is that neither the applicant nor her son is legally represented and the provisions in RHC Order 15 rules 6(3) and 6(4) and Order 80, rule 2 have not been complied with in making this application.

28.  In our view, the better course is for the applicant’s son to consider, with the benefit of legal advice, whether to seek leave for applying for judicial review out of time and if so, the manner in which the requirement in Order 80 rule 2 can be complied with.

29.  For the reasons above, we would dismiss the applicant’s application to join her son to the intended appeal.

30.  As for the applicant’s own application for leave to appeal, we note that the applicant has not provided any reasonable explanation for her delay in bringing the intended appeal.  We would nonetheless go on to consider the merits of the intended appeal.

31.  The applicant failed to demonstrate any error in the decision by the judge, whether in the summons and affidavit filed on 4 August 2020 or her written submission. She has failed to identify any viable ground of appeal and the application should be dismissed for this reason alone.

32.  Further, in the written submission the applicant alleged that the Board failed to make inquiries with the Indonesian authorities which apparently has no relevance to her home country (the Philippines).  In any event, even assuming this to be a typographical error, she did not give any particulars of the enquiries which she says ought to have been made.  The applicant’s suggestion that she is in a position to make a subsequent claim under section 37ZO of the Immigration Ordinance, Cap 115 is a matter that should be made by a further application to the Immigration Department, and is not a matter that can be raised on this appeal.  We would therefore give no weight to these matters.

33.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 4 August 2020 is dismissed accordingly.

34.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.