RE CASTILLO RAQUEL ADONA AND ANOTHER

CACV 508/2021

[2022] HKCA 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 508 OF 2021

(ON APPEAL FROM HCAL 1170 OF 2018)

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J U D G M E N T

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Hon Chu JA (giving judgment of the court):

1.  This is the 1^st and 2^nd applicants’ appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) set out in the Form CALL-1 dated 5 November 2021 ([2021] HKCFI 3333) dismissing their application for leave to apply for judicial review out of time.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 5 May 2017[1] refusing the applicants’ application for late filing of notice of appeal against the decision of the Director of Immigration (“the Director”) dated 15 April 2016 not to re-open the applicants’ non-refoulement applications.

3.  The 1^st applicant is a national of the Philippines. On 30 June 2013, she gave birth to her daughter, the 2^nd applicant, in Hong Kong.

4.  By written representations received by the Immigration Department on 31 December 2014 and 5 January 2015, the 1^st applicant lodged a non-refoulement claim on the basis that she would be harmed or killed by her husband if she returned to the Philippines as he found out that she had met and lived with a Filipino man in Hong Kong. By a written signification dated 14 August 2015, she applied for non-refoulement protection on behalf of the 2^nd applicant.

5.  On 3 November 2015, the applicants were served with blank Non-refoulement Claim Forms (“NCFs”) and were informed by the Immigration Department to complete and return the NCFs within 28 days.

6.  On 4 November 2015, the applicants became represented by the Duty Lawyer Scheme (“DLS”). The Immigration Department informed the DLS on 24 November 2015 and 15 December 2015 that the completed NCFs must be returned on or before 22 December 2015, failing which the applicants’ non-refoulement claims would be treated as withdrawn. By a letter dated 22 December 2015, the DLS informed the Immigration Department that they were unable to further represent the applicants in the absence of their instructions.

7.  As the applicants failed to return their completed NCFs, the Director by letter dated 5 January 2016 informed the applicants that their non-refoulement claims had been treated as withdrawn on 23 December 2015, but they could apply to reopen their non-refoulement claims if they could provide sufficient evidence to show that their failure to return the completed NCFs as required was due to circumstances beyond their control.

8.  By a written representation dated 29 January 2016, the applicants requested to reopen their non-refoulement claims. By letter dated 17 February 2016, the Director asked the applicants to provide information supporting their request. No information was provided by the applicants. Accordingly, on 15 April 2016, the Director informed the applicants of his decision not to reopen their non-refoulement claims.

9.  On 12 May 2016, the Board received a notice of appeal dated 4 May 2016 from the applicants seeking to appeal the Director’s decision (“the 1^st Notice of Appeal”). As the 14-day period for filing a notice of appeal as stipulated by section 37ZS(1) of the Immigration Ordinance, Cap. 115 (“the Ordinance”) expired on 3 May 2016, the 1^st Notice of Appeal was out of time.

10.  Subsequently, the applicants filed two further notices of appeal which were received by the Board on 10 January and 12 January 2017 (respectively “the 2^nd Notice of Appeal” and “the 3^rd Notice of Appeal”). The applicants stated in the 2^nd and 3^rd Notices of Appeal that they had moved residences in May 2016 and misplaced the 1^st Notice of Appeal. A tenancy agreement and the 2^nd applicant’s birth certificate and Recognizance were attached to the 2^nd Notice of Appeal.

11.  By its decision dated 5 May 2017, the Board refused the applicants’ application for late filing of notice of appeal. The Board noted that the applicants’ 1^st Notice of Appeal was nine days late. The Board had regard to Section 5 of the 1^st Notice of Appeal where the applicants stated that they only received the Director’s letter on 30 May 2016 because someone had taken it away. The Board was of the view that the assertion was illogical because they would not have been able to retrieve the letter and fill in the notice of appeal if someone had taken it away.

12.  By a letter dated 10 May 2017, the Board also informed the applicants that as it had finally decided the matter on 5 May 2017, no further action would be taken in respect of their 2^nd and 3^rd Notices of Appeal.

13.  On 22 June 2018, the applicants filed a Form 86 to apply for leave to judicially review the Board’s decision of 5 May 2017.

14.  Under Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. By the time the applicant filed her Form 86, she was ten months late.

15.  The applicants did not provide any ground for their application, other than stating in the supporting affirmation that the Board disregarded their dangerous situation.

15.  The Judge heard the application at an oral hearing on 30 September 2021. Only the 1^st applicant attended the hearing. By his decision given on 5 November 2021, the Judge refused to grant an extension of time and dismissed the application for leave to apply for judicial review. He set out his reasons at [18] to [25] of the Form CALL-1 as follows:

“18. In the Applicants’ case, a delay of more than 10 months must be considered as very substantial or inordinate, for which A1 explained at the hearing of their application that they never received the decision in the mail, as they might have then moved to another address, and that it was only much later when they reported on their recognizance that they were informed of the decision by their immigration officer, but by then they were already way out of time with their intended application.

19. The record shows that the decision was sent on the same day to the Applicants’ last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate their bare assertions, such as when did they in fact move to a different address of which it was their duty to inform the authorities as soon as practicable, or as to when exactly were they so informed of the decision when they reported on their recognizance which they were required to do periodically, I am not satisfied that they have provided any good reason for their serious delay.

20. As for the merits, if any, of their intended application, as noted above the Applicants have not put forth any proper basis or ground for their intended challenge of the Board’s refusal to allow the late filing of their Notice of Appeal, and at the hearing of their application A1 conceded that they have no good reason for their failure to return a completed NCF to the Director as required in the first place, or for their subsequent failure to provide any explanation or evidence of any circumstances beyond their control that might have prevented them to do so. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

21. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm, or as in the present case the failure to make out a claim without the required NCF, are matters within their province being the decision-makers on the facts, and not primarily for the Court in determining an application for leave for judicial review, and that the Court will not usurp the role of the Director or the Board as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

22. In the Applicants’ case, the Board refused to allow the late filing of their Notice of Appeal for the reasons as noted above, of which the Board was in my judgment entitled to do given their failure to provide any evidence to corroborate their bare assertions, and although the Board did not appear to have specifically stated to have taken into account of the merits of the Applicants’ appeal as part of the relevant matters of fact within the knowledge of the Board under Section 37ZT(2)(b) of the Ordinance, and which has been held to be necessary by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, the indisputable fact is that the Applicants had never returned a completed NCF within the required period to the Director, and had also subsequently failed to provide any evidence of any circumstances beyond their control which might have prevented them to do so, there is simply no merits in their appeal for the Board to take into account in its decision to refuse the late filing of their Notice of Appeal.

23. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in the Director’s decision not to allow the Applicants to re-open their claim or in the Board’s refusal to allow the late filing of their Notice of Appeal.

24. I am of course mindful of the fact that A2 being a minor now aged 8 was not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and that for the claims of minors it would be necessary to separately consider and examine whether their case have been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their process before the Board as the proper approach held by the Court of Appeal in the case of Fabio Arlyn Timogan [2020] HKCA 971, but given the fact of the Applicants’ case that they have not even submitted their NCF in order to commence the processing of their claim, and as I have found that there is simply no arguable merits in their intended judicial review, I shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented under the circumstances.

25. For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.”

16.  On 17 November 2021, the applicants filed a notice of appeal to appeal against the Judge’s decision. The notice of appeal stated that the Board had disregarded the applicants’ dangerous situation in their home country.

17.  The applicants also lodged a written submission on 8 June 2022, which stated the following:

(1)  The Board was insensitive to their case. They would be in grave danger if they returned to the Philippines

(2)  The Board judged their case arbitrarily and its investigation had not taken into account the cultural context. The Philippines was fraught with unlawful killings by the police and armed individuals.

(3)  The applicants had no understanding of the judicial system and was not legally represented. It was unfair to say their case had no chance of success and to dismiss it fleetingly, just because they could not follow the deadlines and when the 2^nd applicant’s lack of legal representation could be justified. As foreigners, the applicants were deprived of professional assistance due to lack of money and the service provided by the DLS was extremely limited. They had to struggle to get help form NGOs and other people to understand how things work.

18.  We heard the appeal on 6 July 2022. The 2^nd applicant was absent at the hearing. The 1^st applicant indicated she had nothing to add to what was written in the notice of appeal and written submission. When asked by the Court as to why she did not give instructions to the DLS in 2015, she explained that the 2^nd applicant was born prematurely and there were a lot of medical appointments and other matters to attend to at the time.

19.  The relevant legal principles governing appeals in non-refoulement cases are comprehensively set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

20.  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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.

21.  In the present case, under sections 37Y(2) and 37ZG(1) of the Immigration Ordinance, the applicants’ non-refoulement claims must be treated as withdrawn upon their failure to complete and return the NCFs by the stipulated time. Their claims might be re-opened if they provided sufficient evidence in writing to satisfy the Director that (a) they had exercised all due diligence to return their completed NCFs; and (b) their failure to return the NCFs were because of circumstances beyond their control: see section 37ZG(3) of the Immigration. Although the applicants had written to the Director to request the re-opening of their claims, they had not provided information to satisfy the requirements of section 37ZG(3), despite request from the Director. This being the case, the Director has no legal basis to allow their claims to be re-opened, and the decision refusing to re-open the applicants’ claims cannot be faulted.

22.  When the applicants sought to appeal to the Board, the 14-day period for appeal under section 37ZS(1) of the Immigration Ordinance had expired. Under section 37ZT(2), the Board was required to decide, as a preliminary decision without a hearing, whether to allow the late filing of the notice of appeal, by taking into account the statement of reasons given in the application for the late filing and the supporting evidence that accompanied the notice of appeal.

23.  Section 37ZT(3) further provides that the Board may allow the late filing of the notice of appeal if the applicants provided sufficient evidence in writing to satisfy the Board that (a) they had exercised all due diligence to file the notice within the prescribed time; and (b) their failure to do so was because of circumstances beyond their control. It was also held in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, which was followed by this Court in Re Qasim Ali [2019] HKCA 430, that the Board also had to evaluate all the circumstances known to it in order to deal justly with the application before it. This would include giving consideration to the merits of the intended appeal: See Re Qasim Ali at [23] to [26].

24.  As the Judge correctly pointed out in [22] of the Form CALL-1, the Board did not appear to have given consideration to the merits of the applicants’ intended appeal. We, however, agree with the Judge that had the Board considered the merits of the applicants’ intended appeal against the Director’s refusal to re-open their claims, it would have concluded that the intended appeal had no merit for the reasons set out in [21] above.

25.  Since the applicants’ application for leave to apply for judicial review was made out of time (see [14] above), an important factor to take into account in deciding whether to give an extension of time is the merit of the applicants’ intended judicial review against the Board’s decision not to allow the late filing of their notice of appeal. In light of the discussions above, and for the reasons given by the Judge (see [15] above), we agree with the Judge that the applicants’ intended judicial review has no reasonable prospect of success, and it would therefore be futile to extend the time for applying for judicial review.

26.  With regard to the grounds and arguments that the applicants put forward in this appeal, they do not engage the reasons given by the Judge for refusing to give an extension of time and dismissing the application for leave to apply for judicial review. Further, the complaint that the Board disregarded the dangers faced by the applicants is misplaced because neither the Director nor the Board had begun to consider the question of risk of harm that the applicants may face because the applicants have not returned their completed NCFs as required.

27.  As to the fact that the 2^nd applicant is a minor, we note that she has been refused legal aid and is represented by her mother, the 1^st applicant, in this appeal. We have examined the circumstances of the case, and agree with the Judge that, on the materials available, there do not appear to be any minor-specific non-refoulement bases that might not have been properly advanced to, or considered by, the Board owing to the lack of legal representation on the part of the 2^nd applicant. Like the Judge, we will treat the non-compliance with Order 80 rule 2 of the Rules of the High Court as an irregularity pursuant to Order 2 rule 1 of the Rules of the High Court.

28.  In conclusion, for the reasons given above, we find no merits in the applicants’ appeal. Accordingly, we dismiss their appeal.