RE REBUENO MARY GRACE REMPILLO AND ANOTHER

CAMP 1/2025, [2025] HKCA 1001

On Appeal From [2024] HKCFI 2169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1741 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 24 June 2019, the applicants issued their application for leave for judicial review by Form 86 in HCAL 1741/2019. The applicants’ intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 14 May 2019 which confirmed the Director’s Decision of 6 September 2018. Deputy High Court Judge KW Lung refused to grant leave for judicial review on 5 September 2024.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, a notice of appeal is to be taken out within 14 days of the Judge’s decision should the applicant wish to appeal the Judge’s decision (19 September 2024). Being out of time for over one month, the applicants took out an application on 8 November 2024 for extension of time to appeal. The Judge refused to grant extension of time to appeal on 19 December 2024.

3.  On 2 January 2025, the applicants filed the present summons to make a further application to this Court for extension of time to appeal.  

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicants’ summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  The 1^st applicant is a Philippines national and the mother of the 2^nd applicant daughter who was born on 19 January 2018[1] in Hong Kong to a Gambian national who is also a non-refoulement claimant.

6.  The 1^st applicant previously worked in Hong Kong as a foreign domestic helper. She last arrived in Hong Kong in January 2017 and was permitted to remain in Hong Kong as a visitor until February 2017 but she overstayed. On 26 July 2017, she was arrested. On 1 October 2017 and 4 April 2018, the 1^st applicant lodged her non-refoulement claims[2].

7.  The basis of the applicants’ claims is the applicants’ fear of being harmed or killed by the 1^st applicant’s ex-boyfriend[3].

8.  As the 2^nd applicant is a minor, the Registrar of Civil Appeals by directions on 3 January 2025 directed that the minor applicant should seek legal representation including taking steps to apply for legal aid. The applicants took no action to apply for legal aid. By directions of the Registrar of Civil Appeals on 22 April 2025, the appeal is proceeded with regardless and the applicants were directed to lodge written submissions failing which the applicants shall be deemed to have abandoned the right to rely on written submissions[4].

9.  The background facts have been summarized in the decision of the Judge (5 September 2024) at [6] to [11].

3)  The Director’s Decision

10.  The Director decided against the applicants’ non‑refoulement claim on 6 September 2018. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution[5] (‘the Director’s Decision’).

4)  The Board’s Decision

11.  The applicants appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[6]. After a hearing held on 13 December 2018, the Board dismissed the applicants’ appeal on 14 May 2019 (‘the Board’s Decision’).

12.  The Board’s finding is summarized in the decision of the Judge (5 September 2024) at [15]-[19].

5)  Decision of the Judge

13.  In his decision dated 5 September 2024, the Judge held that the applicants had failed to show any realistic prospect of success in their intended judicial review of the Board’s Decision. He also held that the Board had considered the 2^nd applicant daughter’s unique situation such as her having no right to stay in Hong Kong under section 11 of the Immigration Ordinance (Cap. 115). It had also considered the daughter’s situation separately, and there was nothing amiss in the lack of legal representation for the 2^nd applicant. The Judge had specifically asked the 1^st applicant if there is any child specific issue not brought to the Board’s attention. The 1^st applicant identified discrimination to her daughter if she is to be returned to the Philippines. The Judge held that the Board had considered the issues of discrimination and difficulty in looking after her daughter. The Judge held that the 1^st applicant’s allegation is without evidence in support. The application for leave for judicial review was dismissed, and the non-compliance with Order 80, rule 2 of the Rules of the High Court was treated as a mere irregularity without rendering the application a nullity[7].

14.  In his decision dated 19 December 2024, the Judge held that the Board found state protection and internal relocation viable for the applicants. No valid grounds were provided to challenge the Board’s Decision[8].

6)  Legal principles

15.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

16.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicants had 14 days from the date of the Judge’s decision to take out a notice of appeal.

17.  The Judge’s decision was dated 5 September 2024. The deadline for taking out a notice of appeal was 19 September 2024. The applicants were more than one month late when they took out a summons for extension of time to appeal (8 November 2024). They have put forward no grounds other than barely saying that the Judge disregarded their dangerous situation, and that they do not have money[9].

(2)  Prospect of the intended appeal

18.  In both the applicants’ summons and affidavit, it was barely stated that the Judge’s decisions disregard their dangerous situation, and that the reason for the late application was because they did not have enough money[10].

19.  In our judgment, the applicants do not have any prospect of success in their intended appeal.

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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

21.  Further, it is well established that the assessment of evidence, Country of Origin Information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

22.  In relation to the 1^st applicant’s intended appeal, she has not pointed to any error in the Judge’s decisions or the reasons he gave for his decision. The Board rejected the 1^st applicant’s claim based on there being state protection and the possibility of internal relocation. Further, there was a failure to meet the threshold standards for all applicable grounds for non-refoulement[11]. In our view, the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s decision. As the 1^st applicant’s appeal has no merits, we dismiss it.

23.  In the case of the 2^nd applicant, she is a minor. The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33] :

‘ 30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] ‑ [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non‑refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non‑refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case‑by‑case basis whether there exist matters that may support potential minor-specific non‑refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non‑refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non‑refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50]‑[53], [56]‑[57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.’

24.  In the present case, the Board had separately considered the 2^nd applicant’s claims[12]. We do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s Decision. The Judge had also separately considered the 2^nd applicant daughter’s claims and reached the same view[13]. There is nothing to indicate that the merits of the 2^nd applicant’s claim or any underlying matter that may support minor-specific non‑refoulement grounds had not been adequately explored before the Board and the Judge due to the lack of legal representation. Giving the matter close and anxious scrutiny, there is no reasonable prospect of success in the intended judicial review of the 2^nd applicant. The non‑compliance with Order 80, rule 2 can be treated as a mere irregularity and the 2^nd applicant’s application for extension of time to appeal should be dismissed notwithstanding that she has not been legally represented.

25.  Since the applicants have not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

26.  As the intended appeal is unarguable, it would be futile to give an extension of time. We refuse to extend time to appeal the Judge’s decision of 5 September 2024. Accordingly, we dismiss the applicants’ summons filed on 2 January 2025.