TUNGPALAN CELY TABIEROS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 224/2024, [2025] HKCA 173

On An Intended Appeal From [2024] HKCFI 1326 &

[2024] HKCFI 2945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 224 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1531 OF 2019)

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JUDGMENT

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

1.  On 12 November 2024, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 30 October 2024 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 14 May 2024 (“the Order”) refusing to grant 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 1 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 July 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of the Philippines. She last arrived in Hong Kong as a visitor on 12 March 2005, and had overstayed since 20 March 2005.  She was arrested by the police on 19 September 2006.  She lodged a torture claim on 20 October 2006, which was rejected by the Director on 27 December 2012.  The Applicant’s application for late filing of her notice of appeal against the Director’s decision was rejected by the Board on 19 August 2013.  On 24 October 2013, she lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture.  The Applicant claimed that, if refouled, she would be harmed or killed by members of the New People’s Army (“NPA”) who once abducted her previous husband and also demanded payment from her with death threats.  Details of the Applicant’s claim have been summarised by the Judge at §§4-10 of the CALL-1 Form ([2024] HKCFI 1326).

5.  By a Notice of Decision dated 11 July 2018, the Director rejected the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 3 risk[1], BOR 2 risk[2], and persecution risk[3] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board.  On 1 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §§11-15 of the CALL-1 Form, as follows:

“[11] At the hearing before the Board, the Applicant adopted all the information contained in the hearing bundle. She confirmed that as at the date of hearing, ie 10 December 2018, her family members in the Philippines are all right. The Board assessed her risk of harm on the basis that the events relied on by the Applicant were true.

[12] In respect of BOR3 Risk, the Board noted that the Applicant had never come across any member of NPA in the past. The threats she alleged received in 2003 were based on hearsay from her children. She only received one threatening call herself in 2006. But there was no evidence to link any of those threats to the NPA. The break-in in February 2003 looked like a case of burglary rather than an NPA operation. More importantly, her family members were never harmed by the NPA or anybody at all, despite their continued living in the Philippines for the past 12 years (from the date of the last threat in 2006 to the date of the hearing of the appeal in 2018) and without ever acceding to their demands. The threats were just empty threats. The Board therefore found that she would not face any real risk of harm upon her return. Further, on the basis of authoritative and credible country of origin information (‘COI’), despite corruption and inefficiency in the police, the Philippine government had been carrying out on-going reforms and taking practical steps to improve police effectiveness and to monitor their conduct. The Board was satisfied that adequate state protection is available in the Philippines.

[13] In respect of BOR2 Risk, the Board noted that the Applicant had not made out a case for protection under this head. It is not her case that she is subject to a death sentence or will be at risk of genocide in the Philippines. She has not complained about risk of deprivation of life by the Philippine government. For similar reasons as explained above, adequate state protection is available against possible risks of harm from other sources.

[14] In respect of Persecution Risk, the Board found her feared harm did not arise on account of race, religion, nationality, membership of a particular social group or political opinion. Thus, it fell outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

[15] Lastly, the Board found with her age, education and work experience, it would not be unreasonable to expect her to relocate to another city in the Philippines to avoid the risk of harm.”

7.  On 4 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review.  No ground of judicial review was given in the Form 86.  In her supporting affirmation filed on the same date, she disagreed with the Board’s finding that she could relocate to other part of the Philippines.  She also stated that she did not want to go back to her home country because she had a daughter to take care of in Hong Kong.

THE JUDGE’S DECISION

8.  On 14 May 2024, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“Having rigorously examined the [Board’s Decision], the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [Unified Screening Mechanism]; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of the evidence she presented. The Applicant could not have any complaint against the Board accepting her evidence. However, it found even on that evidence, there was nothing to suggest the threat was related to the NPA and, more importantly, that the risk of harm is real as evidenced by the total absence of execution or attempted execution of the threat whether by the NPA or anyone in the past 12 years. The Board therefore found the threats were empty threats and there was no real risk of harm. As the Applicant bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The [Board’s Decision] is utterly without fault. The proposed judicial review has no realistic prospect of success.”

9.  On 26 July 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, she was almost two months late to lodge her appeal.  On 30 October 2024, the Judge refused the application, holding that she had no explanation for the substantial delay, and there was no prospect of success in her intended appeal ([2024] HKCFI 2945).

THIS APPLICATION

10.  By a summons taken out on 12 November 2024 in the Court of Appeal, the Applicant applied for an extension of time to appeal against the Order.

11.  In her supporting affirmation filed on the same date, the Applicant repeated the need for her to take care of her daughter who was studying in Hong Kong, and her claimed fear of harm from the NAP upon her return to the Philippines. 

12.  In her written submissions lodged on 25 November 2024, the Applicant claimed that she did not have any knowledge about Hong Kong law.  She referred to and relied on the “Human Rights Report of [the] Philippines 2017/2018 produced by the Amnesty International” (“the Human Rights Report”) to support her assertion of the claimed danger in her home country.  She maintained that internal relocation was not an option for her. She also attached a certificate of appreciation dated 7 July 2023 (“the Certificate”) which appeared to have been issued by her daughter’s school to express the school’s gratitude for the Applicant’s voluntary work provided to the school between 2017 and 2023.

DISCUSSION

13.  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.

14.  The Applicant’s delay of almost two months is significant.  We agree with the Judge that her bare assertion, namely, that she did not get the decision from the High Court on time, is not a valid excuse for the delay.  As observed by the Judge, the Applicant was directed on 1 August 2024 to provide, inter alia, an explanation as to her reasons for the delay, but the Applicant had failed to give any response.

15.  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.

16.  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 was a fresh application for judicial review (see Nupur Mst,at §14(6)).

17.  Further, the assessment of evidence, COI, 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.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

18.  The Applicant’s assertion about her lack of legal knowledge is not a valid ground of appeal against the Order.  In any event, the Applicant had legal assistance in relation to the assessment of her claim by the Director.  The Applicant has failed to show that the overall assessment process of her non-refoulement claim was unfair due to her lack of legal knowledge.

19.  The other assertions raised in the Applicant’s supporting affirmation and written submissions are essentially repetitions of the matters raised before the Judge, but rejected for the reasons set out in the decision of 14 May 2024.  They do not constitute any valid ground of appeal.

20.  The Human Rights Report and the Certificate are new evidence.  The Applicant has not made any application for leave to adduce new evidence. 

21.  To justify the admission of new evidence, the Applicant has to satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR[4] (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(3)).  The Applicant has failed to show that the Ladd v Marshall conditions are satisfied in relation to the Human Right Report.  In particular, she has failed to show that the evidence could not have been obtained and adduced in the proceedings below with reasonable diligence, or would or might, if believed, have a very important effect on the Judge’s decision.  There is no exceptional circumstance to justify exercising our residual discretion to admit the Human Right Report notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

22.  The Certificate does not advance the Applicant’s non-refoulement claim or her present appeal.  In any event, there was a similar document dated 7 July 2018 and attached to the Notice of Appeal/Petition filed with the Board on 25 July 2018, recognising the Applicant’s voluntary work done for her daughter’s school.  The Notice of Appeal/Petition formed part of the hearing bundle before the Judge.  As pointed out by the Judge, the fact that the Applicant had a daughter to be taken care of in Hong Kong is not a matter which can support the Applicant’s non-refoulement claim.

23.  The Applicant has failed to identify or show any error in the Judge’s decision of 14 May 2024, and has failed to raise any viable ground of appeal against the Order.

24.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

25.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 12 November 2024 is dismissed.