RE BALDOZ ANGELYN BARBOSA

CACV 97/2021

[2021] HKCA 1287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 97 OF 2021

(ON APPEAL FROM HCAL NO 1839 OF 2019)

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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):

Introduction

1.  On 3 March 2021, Deputy High Court Judge P Li (“the Judge”)[1] refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 24 June 2019.  In that decision, the Board refused the applicant’s application to file an appeal out of time against the decision of the Director of Immigration (“the Director”) dated 14 February 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 12 March 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a national of the Philippines. She last arrived in Hong Kong on 21 August 2014 and was employed as a domestic helper until her contract was prematurely terminated on 19 April 2015.  She did not depart and overstayed.  She was arrested by police on 16 May 2015 and was transferred to the Immigration Department on 18 May 2015.  She lodged a non‑refoulement claim on 19 May 2015.

4.  The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her stepfather who had raped her.  The factual background was set out at pages 2 to 4 of the Director’s decision dated 18 September 2015.

5.  By notices of decision dated 18 September 2015 and 14 February 2017, the Director assessed the applicant’s non‑refoulement claim on all applicable grounds and determined it against her.  The first decision covered BOR 3 risk,[2] persecution risk,[3] and torture risk,[4] while the later decision covered BOR 2 risk.[5] 

6.  On 4 November 2015, the applicant filed an appeal out of time to the Board against the Director’s decision dated 18 September 2015.  The Board rejected the application for late filing of the appeal on 2 August 2016.  The applicant applied for leave to apply for judicial review (in HCAL 147/2016) of the decisions of the Director and the Board.  That application was dismissed on 3 April 2017.

7.  After the Director’s second decision dated 14 February 2017, the applicant also filed an appeal to the Board, out of time, on 10 March 2017, against it.  In considering whether to allow the late filing of the appeal, the Board noted the applicant’s explanation for the delay being due to having received the Director’s notice of decision on “04/02/2017” and the need for time to find someone to translate the Director’s decision and to prepare the appeal letter as the applicant’s English was very poor. 

8.  The Board considered that the applicant’s explanation for the delay was not reasonable or satisfactory and did not cover the entire period of delay.  The Board considered the factual basis of the applicant’s claim as set out in the Director’s decision dated 18 September 2015 and in the Board decision dated 2 August 2016 to see if there might be any special circumstances by reason of which it would be unjust not to allow late filing of the appeal. 

9.  The Board found that there was nothing in the information provided by the applicant which disclosed any special circumstances. Thus on 24 June 2019 the Board refused to allow late filing of an appeal against the Director’s decision dated 14 February 2017.  In so deciding, the Board also noted that the applicant was legally represented at every stage of the screening process up to the Director’s decision dated 18 September 2015, so that she must have been made aware of the time limit for any appeal against the Director’s decisions.

Decision of the court below

10.  On 2 July 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision dated 24 June 2019.  The applicant’s stated grounds for judicial review in her Form 86 application for leave for judicial review were that the Board unlawfully fettered its discretion, acted in a procedurally unfair manner, was irrational in refusing the applicant’s appeal, and failed to meet the greater duty of care owed to a self‑represented claimant.

11.  In her affirmation in support of her Form 86, the applicant further complained that she was not legally represented before the Board, that there was no oral hearing at the Board, that the Board relied on news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.  She also stated that the Director and the Board rejected her claim without a proper inquiry and without carefully understanding her situation.

12.  Following a hearing on 10 December 2020 attended by the applicant before the Judge, on 3 March 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [7]–[16] of the Form CALL-1 as follows:

“ 7. The applicant filed the leave application in this case for judicial review on 2/7/2019. Upon her request, an oral hearing was held on 10/12/2020. The applicant acknowledged that she was late in filing the notice of appeal. She had nothing to add regarding the delay.

8. In Re Qasim Ali, the Court of Appeal held that in assessing whether to allow late filing, the Board should consider the merits of the appeal regardless of the procedural breaches or the lack of explanation. This was the requirement under s. 37ZT (2)(b) of the Immigration Ordinance.[4]

9. Before deciding whether to allow late filing, the adjudicator did consider the factual basis of the applicant’s claim. He concluded there was no injustice to disallow late filing.

10. In this regard, it may be helpful to set out the basis of her claim. The applicant married in 1996. She had 4 children. She had worked in Jordan and UAE as a domestic helper. In July 2014, she returned to the Philippines from Hong Kong [5] for holidays. She stayed overnight at her mother’s house on the invitation of her step‑father. Her mother was not at home. That night, she was raped by her step‑father. She did not mention the rape to anyone as she felt embarrassed. She did not report to the police as her step-father threatened to harm her, her mother and her children. She was in fear and overstayed in Hong Kong.

11. The Director rejected her claim as there was no ill‑treatment. There was no involvement of any officials. There was reasonable State protection according to the COI. The police would uphold the rule of law. In fact, internal relocation was possible. It was the applicant’s choice not to seek assistance. In Hong Kong, she delayed filing the non‑refoulement claim until she was arrested for overstaying.

12. The applicant stated in her affirmation in support of the leave application that she was not legally represented in the appeal. She was not given an oral hearing. The TCAB relied on sources of news which were not officially recognized.

13. It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings. In fact, the applicant had legal assistance in presenting her case to the Director.

14. The applicant was late in filing a notice of appeal. It is her duty to set out the explanation in the notice. There is no requirement for an oral hearing.

15. The applicant mentioned about the sources of news which are irrelevant in the context of this case. They are put in to confuse this court.

16. In my view, there is no merit in the applicant’s claim.  I agree with the decision of the TCAB.”

Appeal to this Court

13.  On 12 March 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal are:

“ Deputy High Court Judge Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement. And failed to provide a detailed reason in support of this decision. Also, the country origin information was ignored while preparing this Judgment dated 03 days of March 2021” [sic]

14.  Despite the directions issued by the Registrar of Civil Appeals on 29 June 2021, the applicant failed to lodge any written submissions for this appeal.  In accordance with the directions, therefore, the hearing date is vacated and this appeal is disposed of on paper without a hearing.

15.  The Board’s decision dated 24 June 2019 was only to refuse to allow the late filing of the applicant’s appeal against the Director’s decision dated 14 February 2017.  The applicant’s grounds of appeal to this Court did not address the crucial issue, ie whether late filing should be allowed.

16.  In our view, the applicant’s explanation for the delay is illogical and unsatisfactory.  As noted at paragraph 14 of the Board’s decision dated 24 June 2019, the applicant stated that she received the Director’s decision dated 14 February 2017 on “04/02/2017”.  It is not clear from the context whether she meant 4 February 2017 or 2 April 2017.  If it was 4 February 2017, that would suggest that she received the Director’s decision 10 days before it was issued.  If it was 2 April 2017, that would be after her appeal to the Board filed on 10 March 2017.  The Board was quite entitled to find that there was no proper ground extending time for an appeal.

17.  As to the grounds stated in the applicant’s Notice of Appeal in this court, there is nothing at all to substantiate the allegation that the Judge was wrong in stating in paragraph 11 of his reasons that there was no involvement of any officials. The judge plainly gave adequate reasons for his decision.  There is no particular given by the applicant of any country of origin information that the Judge allegedly ignored.

18.  For these reasons, the appeal is dismissed.