YERRO JOY MORONDOZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 150/2024, [2025] HKCA 218

On Appeal From [2024] HKCFI 866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 150 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1398 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.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) dated 11 April 2024[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 4 April 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1986. She had worked in Hong Kong as a foreign domestic helper. Her last employment contract was prematurely terminated on 16 February 2017 and she had overstayed since 3 March 2017. On 9 March 2017, she surrendered to the Immigration Department. Meanwhile, the applicant had given birth to a daughter on 13 January 2016 with a Pakistani Muslim in Hong Kong and the daughter had also overstayed since 3 September 2017. By way of written submissions on 11 July 2017, 15 September 2017, 28 September 2017 and 12 October 2017 respectively, the applicant, on behalf of herself and her daughter, lodged their non-refoulement claims. The claims were made on the basis that, if refouled, they would be harmed or killed by the applicant’s husband because the applicant had given birth to a daughter with another man out of wedlock. They also feared they would become homeless or be subjected to derogatory treatment by the Christian community in the Philippines. The factual background of the applicant and her daughter’s claims were set out at [22] to [43] of the Board’s decision.

3.  The applicant and her daughter’s claims were assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] By a notice of decision dated 27 February 2018, the Director rejected their claims.

4.  The applicant and her daughter then appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 19 September 2018, during which the applicant gave evidence and answered questions from the Board. In its decision dated 4 April 2019, the Board dismissed the appeal and affirmed the decision of the Director. The Board found the applicant’s claim regarding derogatory treatment of her and her daughter was exaggerated as the country of origin information (“COI”) indicated that children born out-of-wedlock were common in the Philippines. It also noted that the applicant’s evidence about how her husband discovered her affair was inconsistent. Furthermore, the Board rejected the applicant’s evidence about the influence of her husband through his allegedly well-connected uncles in the police force and found that protection could be sought by the applicant from the authorities. In any event, internal relocation would be a viable option for the applicant and her daughter according to the COI.

The Judge’s decisions in the court below

5.  On 23 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision. She did not specify any ground for judicial review either in the Form 86 or in the accompanying affirmation, but merely annexed the Director’s and the Board’s decisions.

6.  The name of the applicant’s daughter was originally in the Form 86, but was subsequently deleted. A hearing was fixed on 13 September 2023 for the applicant to clarify the matter, but she was absent without prior notice to the Court. Subsequent attempt had been made to find the applicant, but in vain. Another hearing was then fixed on 29 January 2024, but the applicant was again absent. As it was unknown why the applicant would omit her daughter as one of the parties, the Court considered the application on paper as per the Form 86.

7.  On 11 April 2024, the Judge issued his decision refusing to grant leave to apply for judicial review. The reasons were set out in [16] to [20] of the Form CALL-1 as follows:

“ 16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18. 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.’

19. For the reasons given in paragraph 13, the Board rejected the applicant’s evidence. The applicant has raised no valid ground to challenge the Board’s Decision The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

20. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

8.  On 28 May 2024, about a month after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons together with a supporting affidavit to apply for extension of time for filing a notice of appeal. In her affidavit, the applicant stated that:

“ … I did not get any letter from the High Court. I am very sorry as I changed my address. I have no experience and no one asked me to update my address in the court. Long time I changed my home. So the court did not do wrong. This is my wrong and I apology. Give me permission to appeal.”

9.  On 26 July 2024, the Judge issued his decision in writing. The Judge held that the applicant could not complain about not receiving his decision dated 11 April 2024 as it was sent to her last known address without being returned undelivered and the Court was not notified about any change of address. In any event, the applicant failed to show any realistic prospect of success in her intended appeal, so that her application for extension of time to appeal was refused.

The renewed application before this Court

10.  By summons filed on 9 August 2024, the applicant made an application for leave to appeal out of time the Judge’s decision dated 11 April 2024. She did not specify any ground in support of her application in her affidavit.

11.  In the applicant’s written submission lodged on 22 August 2024, she merely recited paragraphs 6 and 7 of the Judge’s Decision on 11 April 2024, which outlined her background and basis of claim. Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late for about a month when she filed her initial summons on 28 May 2024. Her claim in her supporting affidavit that she did not receive the Judge’s decision dated 11 April 2024 due to change of address had already been dealt with by the Judge in his decision dated 26 July 2024. Nonetheless, as this was not a very lengthy delay, we are prepared to focus on the merits of her intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the applicant and assessed her evidence, providing detailed reasons. The Board rejected the applicant’s non-refoulement claim because it found that her claimed fear for receiving derogatory treatment was exaggerated, while her evidence about how her husband discovered her affair was inconsistent. The Board also rejected the applicant’s claim about the influence of her husband in the police force and found that both state protection as well as internal relocation would be available to her. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application for leave to apply for judicial review.

17.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 9 August 2024 is accordingly dismissed.