RE CRUZ JENNYLYN MANAYAN

CAMP 209/2023, [2024] HKCA 632

On Appeal from [2023] HKCFI 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 209 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 434 OF 2019)

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J U D G M E N T

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

1.  On 5 June 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 22 May 2023 ([2023] HKCFI 1224)  (“the EOT Decision”)  refusing to grant her an extension of time to appeal against an earlier order of the Judge dated 21 March 2023 ([2023] HKCFI 663)  (“the Leave Decision”)  refusing her application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 21 January 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 26 February 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of the Philippines.  She entered Hong Kong as a foreign domestic helper on 27 July 2016 and was permitted to stay until 27 July 2018 or two weeks after the termination of the contract, whichever was earlier.  On 23 October 2016, her employment contract was terminated prematurely.  She overstayed since 7 November 2016. On 8 November 2016, she surrendered herself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband, Richard Cruz.  Details of the applicant’s claim were summarised by the Judge at [3] - [4] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons for its decision were summarised by the Judge at [7] - [9] of the Leave Decision:

“7. The applicant appealed the Director’s Decision to the Board. On 12 December 2018, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [7(viii)]; [30].

8. The Board recapped the applicant’s personal background and her claim [8]-[28]. It also considered the applicant’s oral evidence [29]-[41]. Having assessed all the evidence, the Board found that the applicant’s accounts on the domestic violence were consistent with the country of origin information (‘COI’)  and thus accepted that she and Richard had an acrimonious marriage and separated in 2009 [43]-[46]. However, the Board refused to accept that the applicant was a truthful witness in relation to the accounts on the incidents occurred since 2009. In particular, the Board noted that her oral evidence was inconsistent with those in her written statement, such as the gun pointing incident [47]-[48]. It also found her evidence on her three returns back to the Philippines vague and unpersuasive [49]. Meanwhile, despite the claimed assaults and the fact that her family were still in the Philippines, the applicant was unable to produce any documentary evidence for her claimed injuries [50]. The Board further cast doubt on her delay in seeking protection in Hong Kong [51]. Nevertheless, even if her encounters with Richard in the past ten years were true, the Board found that the COI showed that state protection to women who suffered domestic violence was available in the Philippines [52]-[56].

9.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed her appeal.”

7.  On 15 February 2019, the applicant filed a Form 86 in these proceedings for leave to apply for judicial review against the Board’s Decision.  Her grounds in support of her application was summarised by the Judge at [11] of the Leave Decision:

“(1)  The Board was in breach of procedural fairness as it had fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirements.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)  The Board’s Decision is unreasonable or irrational in the public sense or as a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant. The Board decided not to have a hearing. However, it failed to invite her to make written submission.

(5)  The Board had relied on the source of news which is not officially recognized or it is simply hearsay. It had also relied on some cases which are fairly outdated. That is why it had made groundless speculation that it is safe for her to return to her country.”

8.  On 24 October 2022, the applicant attended an oral hearing in person before the Judge.  A Tagalog interpreter was also present to provide language assistance.

THE JUDGE’S DECISION

9.  On 21 March 2023, the Judge refused her application for leave to apply for judicial review.  His reasons were stated at [12] - [19] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she understands the Board’s Decision and the hearing before the Board is fair and that she is not satisfied with the Board’s Decision because the Board did not believe her story.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. The grounds as set out in paragraph 11 and paragraph 13 above do not assist her application. According to the Board’s Decision, the applicant had attended a hearing on 12 December 2018[1]. All of the grounds are her bare assertions or comments without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].’

16. There is no valid ground from the applicant to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 21 April 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was over two weeks late with her intended appeal.

12.  On 22 May 2023, the Judge refused the applicant’s application, holding that she was not able to raise any valid ground to challenge the Board’s Decision and there was not any realistic prospect of success in her intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation taken out on 5 June 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In her summons and supporting affirmation, the applicant did not give any explanation as to her delay or advance any ground in support of her application or intended appeal.

14.  Contrary to the directions given by the Registrar of Civil Appeals on 5 June 2023, the applicant failed to lodge any written submissions.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  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 the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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 judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, the applicant’s reapplication is a non-starter.  At the outset, the applicant’s delay of two weeks is significant and she fails to give any reason, let alone good reason, for her delay.  More importantly, she has failed to advance any intended ground of appeal or specifically point out any error in the Leave Decision.  As such, her intended appeal must fail and we see no basis to interfere with the Leave Decision.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 5 June 2023 is dismissed.