RE GENON MARIA LEONORA OMBROSA

CAMP 276/2021

[2021] HKCA 1624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 276 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1858 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):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge K W Lung (“Judge”) on 18 June 2020[1] refusing 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 (“Board”) dated 8 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 12 February 2018 rejecting the applicant’s non‑refoulement claim.

2.  On 2 July 2021, the Judge refused to grant an extension of time for the applicant to appeal against his decision of 18 June 2020.

Background

3.  The applicant is a Philippines national.  She was employed in Hong Kong as a domestic helper from 1 June 2013 and last entered Hong Kong via Macau on 8 September 2014.  After her last contract was prematurely terminated on 14 October 2014, however, she did not depart within two weeks as required, and overstayed her permission to remain in Hong Kong.  She surrendered to the Immigration Department on 18 December 2014, and lodged her non‑refoulement claim on 2 March 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 former boyfriend, due to their arguments about his drug addiction and due to disputes over the custody of their son.  While in Hong Kong, she entered into a relationship with another boyfriend in 2014, with whom she has a daughter born in Hong Kong in September 2016.  Her daughter is a Hong Kong permanent resident.  She lost contact with her daughter’s father in 2017.  The detailed factual background of her claim was set out at [9] to [21] of the Board’s decision.

5.  By notice of decision dated 12 February 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 14 June 2018, during which the applicant gave evidence and answered questions from the Board.  The Board found the applicant’s factual claims regarding her first boyfriend’s drug use to be vague and unpersuasive, and considered it likely that the applicant’s claims had been fabricated in an attempt to remain in Hong Kong.  Nevertheless, even assuming her claims are true, the Board noted that it was the applicant’s evidence that her first boyfriend never harmed her or her family.  Thus the Board was not satisfied that he would threaten or harm the applicant in the event of her return.  The Board also found that should the applicant’s daughter be required to live in the Philippines with her there was no evidence that this would cause the applicant to suffer any risk of harm.

7.  As a result, the Board found that there was no real risk of harm in the event of refoulement.  The Board dismissed the applicant’s appeal on 8 August 2018 on all applicable grounds.

The Judge’s decisions in the court below

8.  On 6 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, she did not set out any grounds for judicial review in either her Form 86 or supporting affidavit. 

9.  Following a hearing on 18 December 2019 at which the applicant appeared before the Judge, on 18 June 2020 the Judge refused to grant leave for judicial review.  The reasons for the refusal were set out in [16]‑[18] of the Form CALL‑1 as follows:

“ 16. 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.’

17. There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

18. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

10.  On 14 July 2020, the applicant took out a summons to seek an extension of time to appeal against the said decision of the Judge.  In her supporting affidavit, she deposed that she did not receive the Judge’s order and judgment within 14 days and should be given a reasonable opportunity to present her case.  However, she did not put forward any grounds of appeal in her application.

11.  The Judge determined that application without an oral hearing.  In his decision dated 2 July 2021,[6] the Judge stated that the grounds for the application were not valid grounds showing any reasonable chance of success in the intended appeal. Accordingly he dismissed the summons.

The renewed application before this Court

12.  On 23 July 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 18 June 2020 refusing leave to apply for judicial review.  In the summons and her supporting affidavit, she explained that she did not receive the sealed order, Form CALL‑1 and judgment of 18 June 2020 within 14 days due to the order being lost in the post; she could only obtain those documents after searching the court file.  However, she still did not put forward any intended grounds of appeal in her application.

13.  The applicant lodged her written submissions on 6 August 2021, but they consist almost entirely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.  Paragraph (5) of her submissions of states that the Board acted in a procedurally unfair manner by failing to properly assess her credibility, but does not provide any particulars as to how the Board failed to properly assess her credibility or as to any specific errors made by the Judge.

Legal principles

14.  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 an extension of time is granted.  In considering whether to extend time, 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.

15.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will still examine if the intended appeal has merits, in terms of whether there is a real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

Discussion

17.  In the present case, the applicant’s intended appeal was late by 12 days.  The delay is not lengthy, and the applicant’s explanation for her delay seems plausible.  Accordingly, like the Judge, we will focus on the merits of the intended appeal.

18.  As mentioned above, in her summons, affirmation and written submissions the applicant did not provide any particulars in support of her arguments or as to any specific errors in the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20.

19.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no such grounds that point to any error by the Judge, the appeal should be dismissed.

20.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection due to its finding that the applicant probably fabricated her claims and that in any event even on her own case her first boyfriend never harmed her or her family.  As a result, the Board was not satisfied that he would constitute a threat of harm to the applicant in the event of her return to the Philippines.  The Board thus found that there was no real risk of harm in the event of refoulement.  These findings were open to the Board on the evidence.  The court will not interfere with such assessments unless they are vitiated on public law grounds.  But no such grounds have been advanced, let alone established.

21.  As for the applicant’s argument that the Board failed to properly assess her credibility, this is wholly unparticularised and hence not acceptable.  In any event it is inconsequential, as the Board found that even assuming the applicant’s factual claims were true (notwithstanding that the Board concluded those claims were probably fabricated), there was no risk of harm shown.

22.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable case for judicial review of the Board’s decision.  The Judge was therefore entirely right to refuse leave to apply for judicial review.

23.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 23 July 2021 is accordingly dismissed.