MANUEL AMELYN TORRES v. IMMIGRATION DEPARTMENT

CAMP 235/2021

[2022] HKCA 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 235 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 266 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 6 July 2020, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to bring judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1].

2.  On 17 June 2021, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no prospect of success in the intended appeal[2].

3.  On 30 June 2021, 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 38 years old. She came to Hong Kong on 7 April 2014 to work as a foreign domestic helper. Her employment contract was prematurely terminated in May 2014 and she subsequently overstayed. She surrendered to the Immigration Department on 15 May 2015 and lodged a non-refoulement claim on 4 February 2016. Her claim was made on the basis that she will be harmed or killed by her former boyfriend because of their domestic disputes if she returns to the Philippines.

5.  By a Notice of Decision dated 23 August 2016, the Director rejected the applicant’s non-refoulement claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  By a Notice of Further Decision dated 12 July 2017, after considering the existing information and some new submissions from the applicant, Director rejected her claim on BOR 2 risk[6].

7.  The applicant appealed against the Director’s decisions to the Board and attended the hearing before the Board on 8 November 2017. The Board assessed it is unlikely that the applicant will face any risk of harm upon her return to the Philippines as she has had no serious difficulties with her former boyfriend since she left him in 2010 and has not received any threats from him since she left the Philippines in 2014.  The Board further found that the applicant would receive reasonable protection even if there is any risk of harm in the Philippines as the Department of Justice has created a specific task force on the protection of women and children. There are also shelters and residential care facilities available for women who have experienced violence. The applicant failed to provide any reason to show that she would not be able to access these services if any difficulties had materialized. Therefore, the Board dismissed the appeal on 26 January 2018[7].

The judge’s decision

8.  On 21 February 2018, the applicant applied for leave to apply for judicial review against the decision concerning her non-refoulement claim. In her Form 86, she only named the Director as the proposed respondent but she referred to the decision dated 26 January 2018 which was the decision made by the Board. DHCJ Bruno Chan treated her application as an application for leave to bring judicial review against both the decisions of the Director and the Board. In her application, the applicant only stated that the Immigration Department disregarded her dangerous situation without providing any particulars or elaboration. As she did not request for an oral hearing, the judge considered the application on paper. The judge considered that there is no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board. Thus, the judge concluded that the intended judicial review has no prospect of success and dismissed her leave application on 6 July 2020.

Grounds of appeal

9.  In the applicant’s summons filed on 30 June 2021, the applicant stated that it was the court’s mistake for not allowing her to file her appeal when she only produced a copy of her recognizance paper because her had lost the original. She has applied for a new recognizance paper but only received it on 22 March 2021.

10.  The Registrar of Civil Appeal directed the applicant to lodge written submissions on or before 14 July 2021 but she did not lodge any written submissions as directed.

Analysis and disposition

11.  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.

12.  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 6 July 2020. The applicant took out summons in the court below on 26 March 2021. She was late for more than seven months, exclusive of the court’s summer vacation in August 2020. The delay is substantial.

13.  The applicant’s explanation for the delay is not believable. She did not explain when she applied for her new recognizance document after she had lost it in 2019. Besides, she did not say when the court allegedly rejected her filing. Assuming that she was refused to make the filing within the appeal period in July 2020, it is not believable that it would take her eight months’ time to obtain a new recognizance paper. It seems more likely that she did not make any filing in July 2020 or that she has not made best endeavours to apply for a new recognizance document from the Immigration Department as soon as possible.

14.  Where a delay is inexcusable although insubstantial, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.  In assessing the merit of an 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.

16.  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.

17.  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. The judge at the court below provided well-founded reasons for his decision. The applicant 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.

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to grant an extension of time to appeal against the decision of 6 July 2020 and dismiss the application for leave to appeal out of time on 30 June 2021.