RE PEPITO JENETH TANURA AND OTHERS

CAMP 159/2018

[2019] HKCA 449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 159 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 1027 OF 2017)

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JUDGMENT

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

1.  The 1^st applicant is a national of the Philippines. She last entered Hong Kong on 9 April 2015 with permission to remain as a domestic helper until the expiration of her employment contract on 10 June 2016 or within two weeks of early termination of employment. After her employment was terminated prematurely on 8 May 2015, she did not depart. On 20 July 2015, she surrendered to the Immigration Department and made a non-refoulement claim. In April 2015, the 1^st applicant married her boyfriend in Hong Kong. On 29 October 2015, she gave birth to their twin daughters, who are the 2^nd and 3^rd applicants. On 12 January 2016, the 1^st applicant made a non-refoulement claim for the twin daughters. The basis of the applicants’ claim is their fear of being harmed or killed by the 1^st applicant’s former cohabitee, Eric, with whom she has two children in the Philippines.

2.  By a notice of decision dated 11 August 2016 and a notice of further decision dated 4 January 2017, the Director of Immigration (“the Director”) rejected the claims of all the applicants.  The first decision covered the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds, and the further decision covered the BOR 2 risk[4] ground.   

3.  The 1^st applicant, acting for herself and for her daughters, appealed the Director’s decisions to the Torture Claims Appeal Board (“the Board”). An oral hearing was held on 11 January 2017 to hear their appeal.  By a decision dated 30 June 2017, the Board dismissed the applicants’ appeal. 

4.  On 7 December 2017, the 1^st applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decisions of the Director and the Board.  The grounds for seeking relief were: (1) lack of legal representation in the appeal before the Board; and (2) lack of language assistance in that the applicants were not provided with a translation of their non-refoulement claim forms to enable them to find out whether their claims had been properly translated.

5.  The application was listed for hearing on 9 August 2018 before Deputy High Court Judge Bruno Chan (“the Judge”).  The applicants were absent at the hearing.  The Judge proceeded to consider the applications based on the documents filed with the Court. 

6.  The Judge held that the applicants’ application was late by more than two months.  He refused to extend the time for applying for judicial review, and dismissed the application for leave to apply for judicial review.  The Judge’s reasons for his decision were set out in [11] to [18] of the Form CALL-1 dated 7 September 2018, [2018] HKCFI 1968, as follows:

“11.  However, by then the applicant was more than two months late with her Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

12.  Accordingly and as the last date for her to file her Form 86 was 30 September 2017, the applicant was therefore more than two months out of time, for which she did not provide any explanation in her supporting affirmation, nor as noted above did she attend the oral hearing for her leave application now before me to give any reason for the delay of which cannot be said to be insignificant, the only other relevant matter to be taken into account is to see if there is any merit in her intended challenge against the decisions of the director and the Board: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor CACV 63/2015.

13.  For her complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.  The applicant already had the benefit of legal representation in presenting the case to the Director, and was able to testify and make representation in the appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in the appeal process, and I do not think this ground is reasonably arguable.

15.  As for the complaint of not being provided with a translation of their NCF, it is plain that the NCF were completed on the applicant’s instructions to her legal representation from DLS, and that she was assisted by an interpreter at her appeal hearing before the Board. I also note that all the court documents were in English which indicates either that she is familiar with the English language or has access to such language assistance, while her affirmation was also in English and did not contain any interpretation clause, which again suggests that she can understand the English language without the need for interpretation, plus the very fact that she had worked in Hong Kong since 2012 that it would not be unreasonable to assume that she must have at least some basic working English to be able to carry out her job as a domestic helper all these years. As such I do not find any arguable basis to challenge the fairness of the process on the basis that she was not given any translation of her NCF in her appeal before the Board.

16.  The fact is that once it has been established by both the Director and the Board that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for the applicant and her daughters to relocate to other areas of the Philippines, the Director and the Board were entitled to find no justification to afford them with non-refoulement protection in Hong Kong, and of which the court will not usurp their role as primary decision makers: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review by her and on behalf of her daughters, and in the absence of any good reason to extend time to the applicant, her application for herself and her daughters is accordingly dismissed.”

7.  Section 14AA of the High Court Ordinance, Cap. 4 provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.  The Judge’s refusal to extend the time for the applicants to make the application for leave to apply for judicial review is interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419.  In accordance with section 14AA, leave to appeal is required before the applicants can put in an appeal in the Court of Appeal.  Further, Order 59 rule 2B(1) of the Rules of the High Court, Cap. 4A provides that the application for leave to appeal should in the first place be made to the Judge.

8.  Accordingly, the Judge directed in the Form CALL-1 that if the applicants intend to appeal against his order refusing to extend the time for making an application for leave to apply for judicial review, they must first apply to him by summons within 14 days for leave to appeal.

9.  By summons filed on 21 September 2018, the 1^st to 3^rd applicants applied to the Judge for leave to appeal against his decision.  On 29 October 2018, the Judge handed down his decision[5] refusing to give leave to appeal his decision and dismissed the summons.

10.  Under Order 59 rule 2B(3) of Rules of the High Court, after the Judge refused to give leave to appeal, the applicants may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal. 

11.  On 2 November 2018, the applicant issued the summons in these proceedings applying for leave to appeal against the order dated 29 October 2018.  The 1^st applicant complained in the affirmation filed on the same day (at [3]) that she was intending to appeal the Judge’s order dated 29 October 2018, but was told she should apply for leave to appeal.  It would not be a correct step to appeal the order dated 29 October 2018 which is a refusal to give leave to appeal.  The correct procedure is to follow Order 59 rule 2B(3) to make a further application to the Court of Appeal for leave to appeal against the Judge’s order dated 7 September 2018 refusing to extend time for applying for judicial review.  Hence, in the summons filed on 2 November 2018, the 1^st applicant should have sought leave to appeal the order dated 7 September 2018, and not the order 29 October 2018. Having regard to the fact that the 1^st applicant is not legally represented and may not fully understand the relevant court procedures, we would exceptionally treat her summons as a further application made under Order 59 rule 2B(3) for leave to appeal against the Judge’s order dated 7 September 2018.

12.  Section 14AA(4) of the High Court Ordinance provides that leave to appeal shall not be granted unless the Court is satisfied that the intended appeal has reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  

13.  The 1^st applicant has not set out any grounds of appeal in her summons.  She stated in her supporting affirmation that she stood by her arguments about procedural unfairness, that she should be given a platform to explain her situation in her first language and that it was unfair to deprive her of the opportunity to do so.  The 1^st applicant repeated these points in her written submission lodged on 21 November 2018.

14.  The Court, in considering whether to extend time for making an application for leave to apply for judicial review, will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success of the intended judicial review; and (4) the prejudice to the putative respondent if extension of time is granted.

15.  We agree with the Judge that the delay in question, being more than two months, is not insignificant.  It cannot be disputed that the applicants have given no explanation for the delay.  We have considered the Judge’s analysis of the grounds for judicial review and his reasons for concluding that they have no merits and the intended judicial review has no prospect of success.  We do not discern any error in the reasons or the conclusion of the Judge.  Given that the intended judicial review has no prospect of success, it would be futile to extend the time for applying for judicial review. 

16.  In the circumstances, the Judge did not err in refusing to extend the time for applying for judicial review.  We note further that the 1^st applicant has not pointed to any error in the Judge’s reasons for refusing to extend time.  We also do not accept the 1^st applicant’s complaint that she did not have an opportunity to be heard.  There was an oral hearing before the Board during which the 1^st applicant had given evidence and made representation through an interpreter.  The Judge had listed her application for leave to apply for judicial review for an oral hearing, but the 1^st applicant did not attend and had given no explanation for it.  It is therefore not open to the 1^st applicant to now complain that she was not given an opportunity to be heard.  

17.  For the reasons given above, we are of the view that the appeal against the Judge’s order dated 7 September 2018 has no prospect of success.  There is also no other reason in the interests of justice requiring the appeal to be heard.  As the threshold for granting leave to appeal is not met, we refuse the application for leave to appeal and dismiss the summons dated 2 November 2018.

18.  As the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.