PALABRICA LANNE BONCALES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 170 /2024, [2026] HKCA 382

On appeal from [2024] HKCFI 1433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 170 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 2373 OF 2023)

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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 24 May 2024, Deputy High Court Judge To refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  On 9 July 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 Deputy High Court Judge K W Lung on 30 August 2024[2].

3.  On 2 September 2024, the applicant filed the present summons with the Court of Appeal indicating that she does not agree with the court’s decision of 30 August 2024.  This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 24 May 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 20 February 2019 to work as a foreign domestic helper. Her employment contract was pre-maturely terminated on 20 August 2021.  She subsequently overstayed.  She lodged her non-refoulement claim on 19 October 2022 on the basis that, if refouled, she would be harmed or killed by her partner and her creditor.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 27 January 2023, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  

6.  The applicant appealed against the Director’s decision to the Board.  She attended the hearing before the Board on 29 June 2023.  The Board found no credible evidence to show that the creditor has real intention to inflict harm upon the applicant, and the creditor did not approach the applicant’s family in the Philippines to threaten or cause them any harm.  As for the alleged risk of harm from the applicant’s partner, the applicant told the Board at the hearing that she had never suffered serious harm from her partner.  The board found that the applicant failed to demonstrate that there are substantial grounds for believing that she would face a real risk of harm at the hands of her partner if she returns to the Philippines.  The Board further found that the applicant could access adequate police protection and other assistance and support from non-government organisations should she require it in the Philippines.  Therefore, the Board rejected the appeal and confirmed the Director’s decision on 29 August 2023.

The intended judicial review

7.  On 28 December 2023, the applicant filed a Form 86 and an affirmation in HCAL 2373/2023 to seek leave to bring judicial review against the Board’s decision out of time.  She only reiterated the problem she faced in her home country without putting forward any specific grounds for her intended challenge.

The judge’s decision 

8.  Deputy High Court Judge To dealt with the application on paper as the applicant did not request for an oral hearing in her application.  The judge found no error of law in the Board’s decision or any procedural unfairness at any stage of the non-refoulement proceedings or in the making of the decision.  The judge concluded that the Board’s decision is utterly without fault and the proposed judicial review has no realistic prospect of success.  Therefore, the judge refused to grant extension of time for the applicant to apply for judicial review and dismissed the leave application on 24 May 2024.

Grounds of appeal

9.  The applicant stated the following grounds in her written submissions:

(1)     The judge may not have analysed her claim properly;

(2)     The judge was wrong as a matter of law for not having applied the principle of irrationality to the decisions of the Director and the Board;

(3)     High standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(4)     The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director;

(5)     Although the applicant’s problems are very severe in her home country and she submitted all the proofs, the judge disappointed the applicant;

(6)     The judgment of the Court of First Instance was wrong and the judge did not scrutinise her matter for extension of time to appeal;

(7)     The Board failed to give sufficient chance to the applicant to arrange the relevant evidence;

(8)     The applicant would face hardship if she is to return to her home country.  The Board has significantly relied on the source of news which is not officially recognised or is simply hearsay;

(9)     The Filipino police would not help the applicant because she is not a political leader of the ruling party or an influential person of the state.

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 24 May 2024 and the applicant was late by about 1 month when she took out the summons at the court below on 9 July 2024.  The applicant explained that she did not receive the court’s decision.

12.  On 24 May 2024, the court sent the decision to the applicant by post to her address which was provided by her to the Immigration Department.  It is noted that this address is different from the address the applicant stated in her summons filed on 9 July 2024 but she has not filed a notice of change of address to inform the court of her change of address prior to that.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15). 

13.  Under these circumstances, the delay is inexcusable.  Thus, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

14.  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.

15.  The applicant’s grounds and submissions are just bare assertions without sufficient particulars or evidence in support.  She failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Therefore, there is no prospect of success in the intended appeal.

16.  For the above reasons, we refuse to grant extension of time to appeal against the judge’s decision of 24 May 2024 and dismiss the summons filed on 2 September 2024.

[1] [2024] HKCFI 1433

[2] [2024] HKCFI 2153

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.