NAVARRO MA TRISHA RODRIGUEZ v. TORTURE CLAIMS APPEAL BOARD

CAMP 46 /2025, [2026] HKCA 477

On appeal from [2024] HKCFI 2424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 46 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1225 OF 2024)

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J U D G M E N T

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

Background

1.  On 12 September 2024, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Director of Immigration (“the Director”)  refusing her request to make subsequent claim of non-refoulement protection[1].

2.  On 27 December 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 27 February 2025[2].

3.  On 7 March 2025, the applicant filed a summons to seek to set aside the order dated 27 February 2025 and for leave to file a Notice of Appeal.  This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 12 September 2024 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of the Philippines. She came to Hong Kong on 17 April 2015 when she was a minor together with two younger siblings to join their mother who had previously worked in Hong Kong as a foreign domestic helper but was then applying for non-refoulement protection.  The applicant’s mother later raised non-refoulement claim for her children including the applicant.  The claim was made on the basis that, if refouled, they would be harmed or killed by their father because of their parents’ domestic disputes and/or by their mother’s creditor because of the outstanding debts.

The previous decisions 

5.  By a Notice of Decision and Notice of Further Decision dated 25 February 2016 and 30 June 2017 respectively, the Director rejected the claims of the applicant and her siblings on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  The appeals of the mother and children were dismissed by the Torture Claims Appeal Board (“the Board”)  on 15 June 2017 and 2 November 2018 respectively.

6.  The applications of the applicant, her siblings and mother for leave to bring judicial review against the Board’s decisions were dismissed by the court on 12 March 2024 ([2024] HKCFI 740).  They did not lodge any appeal against the dismissal of their leave applications.  The applicant later requested to make a subsequent claim, which was rejected by the Director by a Notice of Decision dated 16 July 2024, as she failed to provide sufficient evidence to show that there has been a significant change of circumstances since her previous claim was determined.

The intended judicial review

7.  On 29 July 2024, the applicant filed a Form 86 and an affirmation in HCAL 1225/2024 to seek leave to bring judicial review against the Director’s refusal to her request to make a subsequent claim. She did not put forward any grounds for her intended challenge.  

8.  She attended the hearing before DHCJ Bruno Chan on 3 September 2024.  The judge held that there is no error of law or procedural unfairness or failure to apply high standards of fairness in the Director’s decision or consideration of the applicant’s request.  He concluded there is no prospect of success in the proposed judicial review and dismissed the leave application on 12 September 2024.

Grounds of appeal

9.  The applicant stated her grounds of appeal in her supporting affirmation and written submissions which may be summarised as follows:

(1)  The judge erred in the judgment by not considering all relevant circumstances;

(2)  She was confused with the legal documents and was misguided in thinking that there was a restricted proceedings order (“RPO”)  against her;

(3)  She has been deprived of the opportunity to understand the judgments and to make proper grounds of appeal because of her limited English proficiency as well as lack of language and legal assistance;

(4)  The judge erred in not adjourning the matter;

(5)  The judge overlooked the fact that the appeal against the Director’s decision was filed without legal assistance.

Analysis

10.  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.

11.  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 order was made on 12 September 2024 and the applicant was late by about 3 months when she took out the summons at the court below on 27 December 2024.  The delay is substantial.  The applicant explained that she was misguided to think that there was an RPO against her so she filed an affidavit on 23 September 2024 to seek to remove the RPO.  She only learned from the court letter dated 12 December 2024 that no RPO was imposed.

12.  The judgment on 12 September 2024 did not mention anything about an RPO.  It is unreasonable for the applicant to contend that she was misguided to think that an RPO was imposed against her.  Even if there were an RPO, she could still file an appeal against the RPO.

13.  In respect of the prospect of the intended appeal, the general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

14.  The applicant’s ground contending that the judge failed to consider all relevant circumstances is just a bare assertion without particulars or elaboration.  The judge’s refusal of her leave application is well founded, especially when the applicant did not raise any ground for her intended judicial review.  

15.  The applicant’s limited English proficiency as well as the lack of language and legal assistance are not valid grounds of appeal.  In the present case, interpreter services were provided at hearings at every stage and at the time when she was assisted by Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar [2019] HKCA 658 at §12).  The Court of Appeal has also 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 (Re Paswan Shibu Lal [2018] HKCA 249 at §21).  The applicant already had the benefit of legal representation in presenting her case to the Director in her initial non-refoulement claim.

16.  The applicant’s ground complaining that the judge erred in not adjourning the matter is also untenable as she failed to demonstrate why the judge should have adjourned the matter.

17.  For the above reasons, the applicant’s grounds are without merit.  There is no prospect of success in the intended appeal.  Therefore, we refuse to grant extension of time for the applicant to appeal against the judge’s decision of 12 September 2024.  The summons filed on 7 March 2025 is dismissed.