RE ESPELITA JHOANNIE JEAN TOLOSA AND ANOTHER

CAMP 466/2022, [2024] HKCA 359

On Appeal From [2021] HKCFI 3232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 466 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2699 OF 2018)

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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 9 November 2022, the applicants took out a summons to reapply for extension of time to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 2 November 2021 ([2021] HKCFI 3232)  (“the Leave Decision”)  refusing their application for leave to apply for judicial review.  On 6 October 2022, the Judge refused to grant to the applicants an extension of time to appeal against the Leave Decision ([2022] HKCFI 2890)  (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 21 September 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”)  31 July 2017 rejecting the applicants’ 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 pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicants are nationals of the Philippines.  The 1^st applicant (“the Mother”)  is the mother of the 2^nd applicant (“the Daughter”).  The Mother came to Hong Kong to work as a domestic helper in October 2012.  Her employment contract was terminated prematurely.  She overstayed.  On 2 September 2016, she surrendered to the Immigration Department and lodged a non-refoulement claim by way of written significations respectively dated 13 October 2016 and 3 November 2016.  Their claim was made on the basis that they would be harmed or killed by the Mother’s former live-in partner called Kim and that she feared the political instability in the city where she lived.  Details of the applicants’ claim have been summarised by the Judge at [4] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 31 July 2017 (“the Director’s Decision”), the Director rejected the applicants’ non-refoulement claim on all applicable grounds including risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicants appealed the Director’s Decision to the Board.  The Mother, the Daughter and the Director attended an oral hearing before the Board 23 July 2018 and all parties were legally represented.  On 21 September 2018, the Board dismissed the applicants’ appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The relevant findings made by the Board were summarised by the Judge at [10] of the Leave Decision:

“10. For the reasons set out in the Board’s Decision, the Board, rejected her and her daughter’s appeal and affirmed the Director’s Decision. The Board found:

i. for the reasons stated in §34, the applicant’s evidence was contradictory and not reliable;

ii. it did not accept that Kim would kill her and her daughter [26 & 27];

iii. it did not accept that the political instability would cause danger to her or her daughter as her family are still residing there and safe [29];

iv. it would be unreasonable for the applicant to demand guarantee of her and her daughter’s safety from her own government [30];

v. that the submission of terrorist was just a bare allegation and a mere speculation that it might affect the applicant daughter [32]; and

vi.  the applicants had not made out a case in respect of each of the 4 grounds for their claim [36].”

7.  On 28 November 2018, the applicants filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in the Form 86.  In their supporting affirmation, they only alleged that their lives would be under threat as the Daughter was an illegitimate child and that there was no guarantee that they would live with no harm or discrimination.  The further claimed that the sudden attack of ISIS terrorist group by bomb would put their lives in danger.

THE JUDGE’S DECISION

8.  As the applicants did not request for an oral hearing, the Judge considered their application on paper.  On 2 November 2021, the Judge dismissed their application for leave to apply for judicial review.  His reasons were stated at [13] - [18] of the Leave Decision as follows:

“13. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. 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.’

16. The grounds in support of this application do not assist the applicants. The Board is right to point out that according to Horvath v. Secretary of State for the Home Department [2001] 1 AC 489 at 500 F-H, the standard of state protection required is one of a practical standard, taking into account the state’s duty to establish and to operate a system of protection against persecution of its own nationals. It is not required that the state should provide protection that would eliminate all risks and amount to guarantee of protection. There is no evidence to show that internal relocation would not be possible or too harsh for her and her daughter.

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.  There is no evidence that shows that the applicants have any realistic prospect of success in their intended judicial review.”

9.  Under Order 53, rule 3(4)  of the RHC, the applicants 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 applicants within the 14-day period.

10.  On 7 September 2022, the applicants applied by summons for an extension of time to appeal against the Leave Decision.  By that time, they were almost 10 months late with their intended appeal.

11.  On 6 October 2022, the Judge refused the applicants’ application for extension of time to appeal.  The Judge held that, as the applicants failed to specify any error in the Board’s Decision or the Leave Decision, their intended appeal had no realistic prospect of success.

THIS APPLICATION

12.  By a summons and a supporting affirmation taken out on 9 November 2022 in the Court of Appeal, the applicants reapplied for extension of time to appeal against the Leave Decision.  In their summons, they alleged that they were seeking protection for the Daughter’s rights to stay in Hong Kong owing to possible mental and emotional abuses if refouled.  In their supporting affirmation, the applicants stated that they were late with their intended appeal because they were seeking legal advice from a NGO in the hope of getting legal aid but their response had taken too long.

13.  Contrary to the directions of the Registrar of Civil Appeals dated 16 February 2023, the applicants failed to lodge their written submissions.

DISCUSSION

14.  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.

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 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 applicants.  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)]).

17.  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.

18.  In our view, a delay of almost 10 months is extremely substantial and inordinate.  Although the applicants alleged they were seeking assistance from a NGO, this remains nothing but a mere bare allegation.  In the circumstances, there is no good reason for their substantial and inordinate delay.

19.  As to the Mother’s appeal, she failed to provide any proper ground of appeal.  She did not point out with specific particulars as to how the Judge erred in the Leave Decision.  All her allegations were bare, vague and general and do not constitute proper grounds of appeal.  Accordingly, her appeal must fail on this basis alone.

20.  As to the Daughter’s appeal, the Court’s approach in considering a minor’s claim for non-refoulement protection 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.”

21.  In the present case, the Daughter’s case was premised fundamentally on the claim of the Mother.  Both the Mother and Daughter were legally represented before the Board.  Given that the Board found on the evidence that the Mother’s evidence was unreliable, there is no factual basis to support the Daughter’s claim.  The Board also held that in any event, internal relocation was available.  In any event, as seen from the Board’s Decision at [22] - [50], the Board had considered the applicants’ respective cases as advanced by their counsel, and we do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the Daughter but had not been advanced to the Board or considered by it.  As mentioned above, they were legally represented before the Board.

22.  Accordingly, there is no prospect of success in the applicants’ intended appeal.  It is thus futile to grant the applicants any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicants’ summons taken out on 9 November 2022 is dismissed.

24.  For the avoidance of doubt, we shall treat the non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the Daughter’s application a nullity.