RE PALANGDOSAN MARINA LIPAWEN

CAMP 5/2020

[2020] HKCA 449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 5 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 495/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 30 July 2019, Deputy High Court Judge Josiah Lam 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 27 December 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 16 February 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant applied on 20 September 2019 for extension of time to appeal against the refusal of leave.  On 6 January 2020, Deputy High Court Judge Bruno Chan refused to grant the extension of time.

3.  By a summons dated 8 January 2020, the applicant sought leave from this Court to appeal against DHCJ Bruno Chan’s decision of 6 January 2020.

Background

4.  The applicant is a national of the Philippines.  She first came to Hong Kong to work as a domestic helper in 1998.  In December 2002 she gave birth to a son.  The father of the child was a Mr Agaldang whom she met in the Philippines when she had her home leave in March 2002.  Later she learned that Agaldang had joined a rebel group the New People’s Army (“NPA”) and she decided to end her relationship with Agaldang.

5.  The applicant’s last domestic helper contract was terminated on 7 April 2004.  Her application for a visa extension was refused and she has overstayed since 24 April 2004.

6.  She subsequently entered into a relationship with a man called Mohammad, a Hong Kong permanent resident, and gave birth to a daughter by him in 2006.  The daughter, Aisha was confirmed as a permanent resident in 2012.

7.  She alleged that after Agaldang learned of Aisha’s birth in 2006, he told Mariam, a mutual friend of his and the applicant, that he would kill the applicant and her daughter if they returned to the Philippines. 

8.  In September 2008, the applicant and her daughter Aisha were arrested by police.  On 14 September 2009, the applicant made a torture claim for herself and Aisha, which was refused by the Director on 26 July 2011, and an appeal against the refusal was rejected by the Board on 17 August 2011. 

9.  After Aisha’s permanent resident status was confirmed, the applicant made a non-refoulement claim for herself again on 24 October 2013. 

10.  The applicant’s second non-refoulement claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by Agaldang with support from the NPA.  The factual background was succinctly summarized by the Judge in [1] – [15] of the Form CALL-1 ([2019] HKCFI 1898). 

11.  By notice of decision dated 16 February 2017, the Director assessed the applicant’s non-refoulement claim on the grounds of persecution risk[1], BOR 2 risk[2], and BOR 3 risk[3], and rejected the claim. 

12.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 1 December 2017, during which the Board interviewed the applicant. After hearing the applicant, the Board found that the applicant’s evidence was inconsistent, contradictory and vague on key issues. 

13.  The Board did not accept that the applicant had any communication with Agaldang since 2003 or that he issued any threats to harm her.  The Board found that Agaldang ceased to have any interest in her since then.  The Board did not accept Agaldang would harm her with assistance from NPA.  The Board concluded that the applicant did not face any BOR 3 risk, BOR 2 risk or persecution risk, and dismissed the applicant’s appeal/petition on 27 December 2017.

Refusals of leave for judicial review and of extension of time to appeal

14.  On 27 March 2018, the applicant sought leave from the court to apply for judicial review against the Board’s 2017 decision.  The Form 86 did not contain any ground for seeking relief.  In the affirmation in support of the leave application dated 27 March 2018[4], the applicant advanced the following grounds for judicial review, namely, (a) the lack of legal representation after the Director’s decision of 16 February 2017, and (b) the lack of language assistance.

15.  Upon the request of the applicant, an oral hearing was held on 10 and 20 September 2018.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, DHCJ Josiah Lam refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out in [34] – [40] of the Form CALL-1 ([2019] HKCFI 1898, 30 July 2019) as follows:

“ 34. The Applicant had been represented by the Duty Lawyer Service up to the Director's 2017 decision dated 16 February 2017. She complained there was no legal representation thereafter.

35. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings… The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

36. The Applicant complained there was no language assistance.

37. It is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant…

38. In any event, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

39. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

40. The Applicant's complaints are not reasonably arguable.  She has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant her leave for judicial review.” [emphasis in original]

16.  On 20 September 2019, the applicant took out a summons for an extension of time for appealing against the above decision of DHCJ Josiah Lam.  DHCJ Bruno Chan heard the summons on 29 November 2019.  At the hearing, the applicant explained that she was unrepresented and was not aware of the law requiring her to file her Notice of Appeal within 14 days of the decision under appeal.  In his decision dated 6 January 2020 ([2020] HKCFI 51), DHCJ Bruno Chan considered that the delay was not significant, as the applicant was late by about 7 days after taking into account the court’s summer vacation.  However, the applicant did not raise in her application any grounds of appeal or any errors or unfairness or unreasonableness in DHCJ Josiah Lam’s decision, and when invited to do so at the hearing, she conceded that she was unable to find any mistake or error in the decision.  Thus the summons was dismissed on the ground that there was no reasonable prospect of success in the intended appeal.

The renewed application

17.  On 8 January 2020, the applicant took out a summons seeking leave to appeal against the decision of DHCJ Bruno Chan dated 6 January 2020 refusing leave to appeal out of time.

18.  In her summons and supporting affirmation of 8 January 2020, the applicant reiterated her explanation for applying for leave to appeal out of time.  In her written submissions lodged 9 March 2020 she raised the following grounds of appeal:

(a)  The Board and the Director failed to comply with their duty to make sufficient inquiries into the country of origin conditions and adopted a passive approach in contravention of the required high standards of fairness;

(b)  The Board and the Director failed to take into account relevant considerations and/or took into account irrelevant considerations.

Legal principles

19.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the substantive decision of the Judge out of time.

20.  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 prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

21.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

22.  On the other hand, in cases where the court does not accept that the applicant’s explanation for delay, the court would also examine if there is any merit in the intended appeal.  However, in cases where the delay is substantial and not excusable, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

23.  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 of 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].  For the purpose of this application, the salient principles are as follows:

(1)   The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

24.  In the present case, the applicant was late by 7 days.  As we have mentioned, DHCJ Bruno Chan considered that the delay was not significant.  We would therefore proceed on the basis that the delay is excusable.

25.  In the premises, the crucial factor is whether the intended appeal has a reasonable prospect of success.

26.  The Board rejected the applicant’s claim for non-refoulement protection due to the applicant’s inconsistent, contradictory, and vague evidence on key issues, which in turn affected the Board’s assessment of risk of harm.  As explained, such findings are within the province of the Board, and the Court will not interfere with such assessments unless there are public law grounds giving rise to concern.  Having reviewed the Board’s decision with rigorous examination and anxious scrutiny, DHCJ Josiah Lam could not find any public law grounds that warrant the court’s interference with the decision.

27.  In this application, the arguments raised by the applicant in her written submissions had not been raised before DHCJ Josiah Lam.  Generally, this Court will not entertain new grounds which should have been raised but not raised at the court below.

28.  In any event, those grounds could not assist her.  Based on its assessment of the applicant’s evidence, the Board found that the applicant did not face any real or substantial BOR 3 risk, BOR 2 risk or persecution risk.  In such circumstances, it was therefore not necessary to address country of origin conditions. 

29.  Moreover, the applicant did not specify what she alleged to be the irrelevant considerations taken by the Board and what are the alleged relevant matters which the Board failed to take account.  General assertion of failure without particulars cannot be a valid ground for seeking judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

30.  Having considered the materials before us, we are of the view that DHCJ Josiah Lam’s observations are fully justified.  DHCJ Josiah Lam has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  DHCJ Josiah Lam is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of DHCJ Josiah Lam.

31.  For these reasons, as 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 8 January 2020 is dismissed accordingly.