RE MACAGANDA ELEANOR BALBAG AND ANOTHER

CAMP 204/2022

[2022] HKCA 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 204 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2961 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the order of Deputy High Court Judge P Li (“Judge”)  dated 4 December 2020 refusing to grant leave to the 1^st and 2^nd Applicants to apply for judicial review.[1] The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”)  dated 7 December 2018. The Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“Director”)  dated 31 January 2018 to reject their claim for non-refoulement protection in Hong Kong.

Background

2.  The 1^st Applicant is a national of the Philippines born in 1983.  She came to Hong Kong in December 2012 as a foreign domestic helper.  Her contract was terminated on 19 November 2014 and she had overstayed since 4 December 2014.  On 13 June 2015 she was arrested for overstaying.  She filed a non-refoulement claim on 13 July 2015. 

3.  In 2014, the 1^st Applicant started a relationship with an Indian man who was then working as a foreign domestic helper in Hong Kong, and bore him a son, namely the 2^nd Applicant, who was born on 10 May 2016.  The 1^st Applicant made a non-refoulement claim on behalf of the 2^nd Applicant on 10 February 2017. 

4.  The basis of their claims was that they would be in danger of harm from the 1^st Applicant’s husband if they were to return to the Philippines.  Details of the Applicants’ claim were summarised at §§4-13 of the Board’s decision.

5.  The Applicants’ Non-refoulement Claim Form was completed by their Duty Lawyer.  By a Notice of Decision dated 31 January 2018, the Director dismissed the Applicants’ non-refoulement claim on all applicable grounds: risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

6.  The Applicants appealed the Director’s decision to the Board.  The Board held a hearing on 3 September 2018.  The Board had reservations on the credibility of the 1^st Applicant but was prepared to accept that she had an abusive husband in the Philippines.  The Board noted from the 1^st Applicant’s evidence that no serious injury had been inflicted on her by her husband before and that she knew that the way to stop his abuses was to seek protection from the police and the authorities in the Philippines.  While she was away her husband did not harm her mother and her two children who were in the Philippines.  It was unlikely that her husband would expect her to go back to live with him after such a long period of separation and given her rejection of his requests over the years.  There was sufficient ground for a legal separation under the law in the Philippines, and the 1^st Applicant should be able to obtain such separation from the court there without difficulties.  What she wanted for herself and her child was to go home to the Philippines.  Her concerns about finding a job in the Philippines were genuine but faced by most people in the Philippines.

7.  The Board further considered that the husband’s behaviour did not have the consent or acquiescence of any public authorities.  The Board considered that the likelihood for the Applicants to be harmed by the husband on their return to the Philippines was low, and would be even lower if they were to relocate to another part of the Philippines.  The Board also noted that there are a number of government and non-government organisations that would be able to offer help to the Applicants in the Philippines.

8.  The Board concluded that the Applicants failed to establish their claim in relation to all applicable grounds.  On 7 December 2018, the Board issued its decision dismissing their appeal.

The Judge’s decisions

9.  On 24 December 2018, the Applicants filed their Form 86 to apply for leave to apply for judicial review of the Board’s decision. No ground for judicial review was set out in either the Form 86 or the accompanying affidavit of the 1^st Applicant.

10.  On 4 December 2020, the Judge decided, on the basis of the documents alone, to refuse leave to apply for judicial review for the following reasons:

“ 19. The 1^st applicant filed an application for leave for judicial review on 24/12/2018.In her affidavit in support, she did not point out any specific error in the decisions of the Director and the TCAB.

20. In my view, the decisions are supported by the evidence. I am satisfied that there is no error of law nor is there any procedural irregularity. They are not irrational.

21.  As the claim of the 2^nd applicant is part and parcel of the 1^st applicant’s claim. There is no independent evidence in relation only to the 2^nd applicant. Both applicants’ claim would stand or fall together.”

11.  The Applicants did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons on 2 February 2021 to seek an extension of time to appeal against the decision of the Judge.  In the summons the 1^st Applicant stated she wanted to challenge the decision of the Judge.  In the accompanying affidavit she stated that she did not appeal in time because she did not receive the letter from the court.  No grounds of appeal were put forward.

12.  The Judge determined the summons on the basis of the documents alone.  In his written decision dated 25 March 2022, he dismissed the application as he considered that the intended judicial review had no merit.[6]

Application to this court for extension of time

13.  By summons dated 20 June 2022 filed in this court, the Applicants stated that they wanted to challenge the decision of the Judge dated 25 March 2022.  Following the approach adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, we shall treat the present application as a renewed application for extension of time for the Applicants to appeal against the decision of the Judge dated 4 December 2020 refusing to grant leave for judicial review.

14.  In the supporting affidavit made by the 1^st Applicant, she simply stated that she did not appeal in time because she did not receive the letter from the court.  No ground of appeal was set out. 

15.  Despite the directions given by the Registrar of Civil Appeals, no step had been taken on behalf of the 2^nd Applicant, a minor, for the purpose of complying with Order 80 rule 2 of the Rules of the High Court.  Pursuant to the further directions of the Registrar of Civil Appeals, the 1^st Applicant lodged written submissions on 10 October 2022 in which she stated that, in her country, her enemy wanted to kill her, and that she had no supporting documents because it was not possible to bring any documents when she left the country.

16.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the papers.

Discussion

17.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the intended appeal’s prospect of success; and (4)  the prejudice to the respondent if an extension of time were granted.

1^st Applicant

18.  The 1^st Applicant’s application to the Judge for extension of time to appeal was made more than 6 weeks after the deadline for appeal.  This is a substantial delay for which there is no proper and valid excuse.  Time should not be extended unless there is a real prospect of success in the appeal.

19.  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 v Director of Immigration [2018] HKCA 524 at §14(6)).

20.  The Board’s reasons for rejecting the 1^st Applicant’s claim have been described above.  They were matters within the province of the Board based on the evidence that it received.  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: Re Kartini [2019] HKCA 1022.  We do not see any such error of law, procedural unfairness or irrationality in the Board’s decision in the present case.  Nor has the 1^st Applicant pointed to any.

21.  The 1^st Applicant has also failed to point to or substantiate any alleged error of the Judge in his decision, or to raise any viable ground of appeal.

2^nd Applicant

22.  The 2^nd Applicant is a minor.  The court’s approach in considering a minor’s claim is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33:

“ 30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] - [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

   33.   Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

23.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim.  The Board, after considering the evidence of the 1^st Applicant, found that there was no risk of harm of a sufficient level, that the 1^st Applicant could seek a legal separation from her husband, and that any risk there might be could be further lowered by relocating with the 2^nd Applicant to one of the major cities in the Philippines, such as Manila.  In these circumstances, there is no factual basis to support the 2^nd Applicant’s claim.

24.  The Judge had examined the position of the 2^nd Applicant’s position separately and concluded in his decision dated 25 March 2022 that there was no separate issue in relation to the 2^nd Applicant’s claim.  Like the Judge we do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on behalf of the 2^nd Applicant before the Board.

25.  In the premises, we also find that the 2^nd Applicant’s intended judicial review is not reasonably arguable.

Conclusion

26.  The Applicants’ intended appeal has no merits, and their summons is therefore dismissed.  For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.