BAUTISTA JUDY VILLACORTA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 72/2022

[2022] HKCA 1122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 72 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 3020 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 28 September 2021, Deputy High Court Judge P Li refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2.  On 25 October 2021, the applicant applied for extension of time to appeal against the judge’s decision. On 22 February 2022, the judge dismissed the applicant’s application for extension of time to appeal against his decision as the judge was of the view there is no merit in the intended appeal[2].

3.  On 28 February 2022, the applicant filed the present summons with the Court of Appeal in essence seeking to renew her application to appeal the judge’s decision out of time.

4.  The applicant is a national of the Philippines and is 40 years old. She came to Hong Kong to work as a foreign domestic helper on 16 July 2012 but was prematurely terminated from employment. She was arrested by the police on 13 November 2015 for possession of firearms/ammunition without licence and overstaying, for which she was sentenced to two months’ imprisonment and seven days’ imprisonment (suspended for two years) respectively. While she was detained, the applicant lodged her claim for non-refoulement protection on 2 January 2016 on the basis that she would be harmed or killed by a creditor named Mrs Guzman for an unpaid loan if the applicant is returned to the Philippines[3].

5.  By a Notice of Decision dated 15 August 2016, the Director rejected the applicant’s claim on torture risk[4], BOR 3 risk[5] and persecution risk[6].

6.  By a Notice of Further Decision dated 17 August 2017, the Director found that the applicant’s claim did not engage BOR 2 risk[7] upon receiving no reply from the applicant to provide additional information.

7.  The applicant appealed against the Director’s decisions to the Board. The Board held a hearing on 12 October 2018 and the applicant gave evidence. Whilst the Board did accept that the applicant had taken out a loan from Mrs Guzman and there is possibility of the applicant continuing to be liable for the outstanding debt, the Board found that the evidence did not support a real risk of harm which would warrant non-refoulement protection. The Board also found inconsistences between the accounts given at the hearing and to the Director, such as the applicant’s statement before the Director that there was no written agreement and no collateral security for the loan, and yet in her evidence before the Board she alleged that she signed an agreement.

8.  The Board further acknowledged that while the applicant had received a threatening text message from Mrs Guzman directly on one occasion in August 2015 and other threats via third parties, the Board was not satisfied that the threats were such that the applicant would not be able to obtain protection from the Philippine police. Lastly, the Board observed that internal relocation was not unreasonable as the applicant has admitted she simply did not want to do so because she wished to find her children.

9.  The Board therefore decided the applicant had failed to establish her claim and dismissed her appeal on 13 December 2018.

The judge’s decision

10.  On 31 December 2018, the applicant applied for leave to apply for judicial review against the Board’s decision. She did not supply grounds for seeking relief and in her affidavit, she simply repeated that her life is in danger and she cannot return to the Philippines. As the applicant did not request for an oral hearing, the judge considered the application on paper.

11.  The judge found the applicant did not specify any error of the Board in reaching its conclusion. The judge was satisfied there is no error of law or procedural irregularity in the Board’s decision. He found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 28 September 2021.

Grounds of appeal

12.  The contents of the applicant’s summons and affirmation are identical and they appear to merely repeat what was stated in her summons and affirmation in the Court below. The applicant did not provide any grounds of appeal in both her present summons and affirmation, and simply asserts that she missed the deadline to appeal as she had no knowledge of this and she had insufficient funds.

13.  The applicant has not submitted any written submissions within time or at all. Pursuant to the directions of the Registrar of Civil Appeals on 28 February 2022 and further order of the court dated 15 March 2022 (extending the time to lodge submissions in light of the general adjournment of court proceedings to 14 days after the resumption of court business), the applicant is deemed to have abandoned her right to rely on written submissions.

Analysis and disposition

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 28 September 2021. The applicant took out a summons in the court below on 25 October 2021. She was late for about 2 weeks and no reasonable explanation was provided for the delay.

16.  As the applicant’s delay is inexcusable, she must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

17.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.  In the present case, the applicant did not put forward any viable ground to reverse the judge’s decision and her grounds of appeal are just bare assertions.

20.  For the above reasons, there is no prospect of success, let alone real prospect of success, in the applicant’s intended appeal. It is pointless to grant extension of time to pursue an appeal without merits. We refuse to exercise our discretion to extend time to appeal against the judge’s decision of 28 September 2021 and dismiss the summons filed on 28 February 2022.