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CAMP 407/2021
[2022] HKCA 505
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 407 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 2695/2018)
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| RE: |
CHUA BERBINA GAVINO |
Applicant |
____________________
Before: Hon Yuen JA and Barma JA in Court
Date of Judgment: 22 April 2022
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ K W Lung (“the Judge”) dated 27 May 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 4 February 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 16 October 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).
Background
2. The applicant is a national of the Philippines. She entered Hong Kong on 28 February 2013 and was permitted to remain as a visitor until 14 March 2013. She overstayed and surrendered to the Immigration Department on 10 June 2015. The applicant thereafter lodged a non-refoulement claim on 10 August 2015.
3. The applicant’s claim was based on a fear of being harmed or killed by her stepbrother if she was refouled to the Philippines. The details of the applicant’s claim have been summarised by the Judge at [5] and [6] of his decision (“the CALL‑1 Form”)[1].
4. By a Notice of Decision dated 16 October 2017, the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board. After a hearing on 23 October 2018, the Board dismissed the appeal on 4 February 2019. The Board’s Decision covered all four grounds for non-refoulement protection. The Board concluded that the applicant has on the evidence failed to establish a genuine or substantial risk of harm if returned to the Philippines. It also considered that state protection was available and that internal relocation would reduce or negate the risk of the harm (if any) that she might face.
The Judge’s decision
6. The applicant filed a Form 86 on 28 November 2018 (as amended on 27 May 2021: see [4] of the CALL-1 Form) seeking to judicially review the Board’s Decision without setting out any grounds of review. In her supporting affirmation, she merely exhibited the Director’s Decision. However, she subsequently sent a letter to the court setting out her case.
7. After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL‑1 Form:
“12. In her letter to the Court, the applicant set out the grounds in support of her application. I accept the grounds as evidence as if they were in her affirmation. She said in her letter that Jay Mar is still looking for her. He made different accounts in social media about her making his family miserable. She further said that because of the above, she is suffering from insomnia. Her life is still in danger as Jay Mar still wants to take revenge on her.
DISCUSSION
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
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 applicant’s reasons for her application do not assist her as the Boarding’s finding of the facts is against her.
16. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to extend time for the applicant to make her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The present application for extension of time to appeal
8. The applicant’s address as stated in her Form 86 was at Tsuen Wan Market Street, Tsuen Wan (“the Market Street Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Market Street Address on 27 May 2021. This letter was not returned undelivered.
9. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 27 May 2021.
10. The applicant took out a summons in the Court of First Instance on 23 August 2021 seeking extension of time to appeal, in which her address was stated to be at Yeung Uk Road, Tsuen Wan. In her supporting affirmation filed on the same date, she stated that she did not receive any letter from the court.
11. The applicant’s application to appeal out of time was dismissed by the Judge on 23 September 2021[6].
12. By a summons filed on 27 September 2021, the applicant renewed her application for an extension of time to appeal before this court. In the summons and her supporting affidavit, the applicant simply stated that she wanted to “appeal the decision” and that she did not receive “my letter from High Court”.
13. The applicant, in breach of the directions of the Registrar of Civil Appeals, failed to lodge any written submissions on or before 11 October 2021. In a letter dated 7 October 2021, the applicant simply acknowledged receipt of the Registrar’s directions.
14. We have nonetheless proceeded to consider her application on the basis of the documents before us.
Discussion
15. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
16. The applicant has proffered no reason or explanation to us for the delay in bringing the intended appeal. Even if due to a change of address, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with her.
17. In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.
18. We have nonetheless proceeded to consider the merits of the intended appeal.
19. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
20. The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board Decision. The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
21. Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
22. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
23. For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal. The summons filed on 27 September 2021 is accordingly dismissed.
(Maria Yuen)
Justice of Appeal |
(Aarif Barma)
Justice of Appeal |
The applicant acting in person
[1] [2021] HKCFI 1419
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2021] HKCFI 2621
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