CALUZA MARIA LOURDES GALANG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 182/2024, [2025] HKCA 1147

On Appeal From [2023] HKCFI 2075 & [2024] HKCFI 2092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 182 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 819 OF 2019)

____________________

________________

JUDGMENT

________________

Hon Anthony Chan JA (giving the Judgment of the Court) :

1.  By a Summons filed on 17 September 2024 (“Summons”), the Applicants renew their application for extension of time to appeal against the refusal (dated 23 August 2023) by Deputy High Court Judge KW Lung (“Judge”) to grant leave to them to apply for judicial review (“JR Decision”) ([2023] HKCFI 2075) against the Decision (“Board Decision”) of the Torture Claims Appeal Board (“Board”) dated 1 March 2019.

2.  By the Board Decision, the Board denied the Applicants’ claims for non-refoulement protection on all applicable grounds, and confirmed the decision of the Director of Immigration dated 20 September 2017 (“Director Decision”) which denied the non-refoulement claims of the Applicants.

3.  The Applicants’ application before the Judge for extension of time to appeal against the JR Decision (by way of a Summons filed on 25 June 2024) was dismissed on 30 August 2024 ([2024] HKCFI 2092) (“Extension Decision”).  It was held by the Judge that the time extension application was made more than 9 months after the deadline for the Applicants to file their Notice of Appeal (6 September 2023). 

4.  It is trite that in deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of success of the intended appeal, and the degree of prejudice to the other party if an extension of time is granted.  The prospect of success of an intended appeal is important because the court will not grant an extension of time for a hopeless appeal: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

5.  On 24 January 2025, legal aid was granted to the 2^nd Applicant acting via the 1^st Applicant.  The 1^st Applicant is the mother of the 2^nd Applicant, who is a minor.  In these matters, the 2^nd Applicant is represented by Mr KW Chan and the 1^st Applicant is unrepresented.

6.  The material facts of this case, the Director Decision and the Board Decision had been set out in the JR Decision, [5] to [15].  In short, the 1^st Applicant came to Hong Kong to work as a domestic worker.  She overstayed in Hong Kong after her contract was terminated and later made a non-refoulement claim.  She had a relationship with a Canadian man in Hong Kong (Mr Cockram) and gave birth to the 2^nd Applicant on 27 June 2016.  Mr Cockram (the father of the 2^nd Applicant) had returned to Canada in March 2016.  A non-refoulement claim was subsequently made for the 2^nd Applicant by her mother.

7.  The non-refoulement claims of both Applicants were made on the basis that they would be subject to ill-treatment or their lives would be at risk in the Philippines because of threats made by the 1^st Applicant’s husband (Andres).  The Board did not accept the evidence of the 1^st Applicant on recent death threats made by Andres, and was not satisfied that the Applicants would face a significant risk of ill-treatment or loss of life upon return to the Philippines.  Further, the Board took the view that state protection and internal relocation were available to the Applicants.

8.  The Judge refused to grant leave to apply for judicial review because the Applicants had failed to show any realistic prospect of success in their proposed judicial review. 

9.  In respect of the case of the 2^nd Applicant, the Judge reminded himself that (a) she was not legally represented and (b) of the relevant legal principles that her claim would require separate consideration.  The Judge noted that the 2^nd Applicant’s application was supported solely by the risk that she might be harmed or killed by Andres.  Apart from dismissing such risk, the Board had further considered the specific circumstances of the 2^nd Applicant.  The Judge concluded that: “From the evidence and materials before this Court, there is no other potential minor-specifc non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board”. 

10.  The present application in respect of the 1^st Applicant can be dealt with swiftly.  Despite the observations in the Extension Decision that (a) the delay in filing her intended appeal was unexplained and (b) no valid ground was raised to challenge the Board Decision, such deficiencies have not been remedied in the present application.  In neither the Summons, nor the affirmation of the 1^st Applicant filed on 17 September 2024 in support of the Summons, has any ground of appeal been identified.  There is no basis to grant an extension of time to appeal in favour of the 1^st Applicant.

11.  In respect of the 2^nd Applicant, Mr Chan accepted, correctly, that the delay of 9 months is inexcusable and the court has to be satisfied that there is a real prospect of success in the 2^nd Applicant’s appeal: Sumarsih v Director of Immigration & Anr [2020] HKCA 565, [21].

12.  Two proposed grounds of appeal are advanced on behalf of the 2^nd Applicant :

“(1)   The Board and/or the Judge failed to consider whether, as a mixed-raced minor born out of wedlock outside Philippines, who might be ineligible to obtain Filipino birth certificates, and was not a Canadian citizen with right of abode etc., the 2^nd Applicant might be stateless, and this might in turn affect the separate assessment of her non-refoulement claim on all applicable grounds (“Ground (1)”); and

[emphasis added]

(2)   It was procedurally unfair and improper and in breach of the high standard of fairness for [the 2^nd Applicant] to be left represented only by the [1^st Applicant] but not be legally represented in advancing her case before the Board and the Judge (“Ground (2)”).”

13.  Ground (1) is couched in speculative terms.  To begin with, there was no suggestion made at any stage of the Applicants’ non-refoulement claims that the 2^nd Applicant, a child born out of wedlock to a Filipino parent, is not a national of Philippines.  Indeed, as noted by the Board, in the Non-refoulement Claim Form (“NCF”) of the 2^nd Applicant, which was compiled with the help of the Duty Lawyer Service, her citizenship at birth was stated to be Filipino.

14.  We do not believe that it is appropriate to advance a ground of appeal based on speculation.  There is no indication of any basis to support the suggestion that 2^nd Applicant may be stateless, such as reference to the immigration law of the Philippines or enquiry with the appropriate authority.

15.  We do not believe that the duty of the Board to act with high standard of fairness entails an obligation to look for uncertainty when none had been suggested or had arisen from the materials before the Board.

16.  The case of Novi Azizah & Ors v Torture Claims Appeal Board & Anr [2021] HKCA 1910 which is relied upon by Mr Chan does not assist the 2^nd Applicant.  In that case, one of the grounds advanced by the Indonesian mother claimant was that her children (the other claimants) born out of wedlock in Hong Kong were stateless (see [14(3)]).

17.  We should also mention another case relied upon by Mr Chan, Re Liana Risdianti & Anr [2022] HKCA 1058.  That case also involved a child born out of wedlock in Hong Kong to an Indonesian woman. After allowing the appeal of the child and granted him leave to apply for judicial review, the court referred to two other points, one of which concerned whether he was an Indonesian national as stated in his NCF.  The case of Novi Azizah was referred to.  In particular, the court quoted the reference in Novi Azizah to the “Country Advice Indonesia”.  In Novi Azizah, the court observed that the Advice did not state that children born outside Indonesia to an Indonesian woman would be able to obtain Indonesian birth certificates irrespective of their status as illegitimate children. 

18.  Giving judgment of the court in Re Liana Risdianti, G Lam JA said that: “Following this approach, it is questionable whether the Board was entitled simply to rely on the mother’s statement in the child’s claim form as to his nationality, without further investigation” ([27]).  G Lam JA went on to say that: “We draw attention to this issue so that it may be properly dealt with in the further conduct of the proceedings” ([28]). 

19.  With great respect, we do not believe that the point made was intended to be a statement of principle that stated nationality of children must be investigated by the Board.  Indeed, no ruling was made by the court to that effect.  The facts of Re Liana Risdianti were similar to Novi Azizah in that they both concerned children born out of wedlock outside Indonesia to an Indonesian mother, although in the former it does not appear from the judgment that statelessness was raised as a ground in support of non-refoulement on behalf of the minor.  However, it is perhaps unsurprising that the point was made in Liana Risdianti in light of the dicta made in Novi Azizah about the Country Advice Indonesia.  In this regard, these cases are distinguishable from the present where there is no information which may cast doubt on the statement on the NCF.

20.  For these reasons, Ground (1) is not reasonably arguable.

21.  Ground (2) is not reasonably arguable either. As found by the Judge, the Board did consider the specific circumstances of the 2^nd Applicant.  Further, the Judge, whilst alive to the principles adumbrated in Re Begum Mst Sinthia & Anr [2021] HKCA 207, held that there is no other potential minor-specifc non-refoulement bases which had not or had not been properly advanced to the Board on behalf of the 2^nd Applicant because of the absence of legal representation before the Board.  It has not been demonstrated that the Judge was wrong.

22.  For these reasons, this application is dismissed with no order as to costs.  The 2^nd Applicant’s costs be taxed in accordance with legal aid regulations.