EISMA PERLY CORBILLON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 48/2022

[2022] HKCA 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 48 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2088 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 16 November 2021, Deputy High Court Judge P Li refused to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 8 February 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended judicial review[2].

3.  On 11 February 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of the Philippines. She is 48 years old. She first came to Hong Kong in 1999 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 15 June 2006. She subsequently overstayed and surrendered to the Immigration Department on 28 April 2011. She lodged a torture claim in August 2011 which she later withdrew on 4 November 2011. She lodged a non-refoulement claim on 29 August 2016. Her claim was made on the basis that she will be harmed or killed by her husband if she returns to the Philippines.

The decisions of the Director and the Board

5.  The Director of Immigration (“the Director”) considered the applicant’s non-refoulement claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6] under the unified screening mechanism. By a Notice of Decision dated 17 February 2017, the Director rejected the non-refoulement claim.

6.  The applicant appealed against the Director’s decision to the Board and attended the hearing before the Board on 31 May 2018. Although the Board accepted that the applicant’s husband acted violently towards her when she returned to the Philippines in 2003 and 2005 and that he threatened her with further violence over the phone after she returned to Hong Kong, the Board noted that she has no contact with her husband since 2011 and did not accept the applicant’s claim that her husband would find her wherever she went in the Philippines as there is no basis in support of such assertion. The Board considered that the applicant can avoid the risk of harm should she return by living somewhere other than Manila, such as Pangasinan where her siblings live. The Board found that the applicant failed to establish any of the applicable grounds and dismissed the appeal on 14 September 2018.

The judge’s decision

7.  On 2 October 2018, the applicant filed a Form 86 and an affidavit to apply for leave to bring judicial review against the Board’s decision. As she did not request for an oral hearing, Deputy High Court Judge P Li considered the application on paper. The applicant did not specify any grounds of her intended challenge in her leave application. The judge found that the Board’s decision is supported by evidence and there is no error of law or procedural irregularity in the decision of the Board. Thus, the judge concluded that the intended judicial review has no realistic prospect of success and dismissed the leave application on 16 November 2021.

Grounds of appeal

8.  In the applicant’s summons filed on 11 February 2022, the applicant only stated that she wants to appeal against the decision but did not put forward any specific grounds of appeal.

9.  In her written submissions, she reiterated the problems she faced in the Philippines and contended that the authorities in the Philippines cannot and will not protect her from domestic violence.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 16 November 2021. The applicant took out a summons in the court below on 2 December 2021. She was late for two days. She explained that she was late because she did not have enough money to appeal.

12.  Even if the court is minded to accept her explanation in view of the short delay in the present case, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

13.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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 decision of 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.

15.  In the present case, the applicant did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for her to bring judicial review. She failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We therefore refuse to extend time to appeal against the decision of 16 November 2021 and dismiss the application filed on 11 February 2022.