RE PENOL SALLY BARSOLASO AND ANOTHER

CAMP 31/2024, [2024] HKCA 790

On intended appeal from [2023] HKCFI 2446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 765 of 2019)

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J U D G M E N T

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

Introduction

1.  This is the applicants’ renewed application for extension of time to appeal against the decision dated 3 October 2023[1] of Deputy High Court Judge Lung (“the Judge”)  refusing their application for leave to apply for judicial review.

2.  The 1^st applicant has also filed an affirmation on behalf of herself and the 2^nd applicant in support of the application. No written submissions have been lodged despite the directions given by the Registrar of Civil Appeals.

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

4.  The applicants’ intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  given on 28 December 2018 dismissing their appeal against the decision of the Director of Immigration (“the Director”)  dated 27 December 2017 refusing their non-refoulement claims.

Background

5.  The 1^st applicant is a national of the Philippines. The 1^st applicant last entered Hong Kong on 3 August 2013 to work as a foreign domestic helper. She overstayed in Hong Kong after her contract was prematurely terminated on 11 January 2014. She surrendered to the Immigration Department on 7 July 2014. On 14 July 2014 and 17 July 2014, she lodged a claim for non-refoulement protection.

6.  The 1^st applicant gave birth to the 2^nd applicant, who is a boy, on 27 August 2014. On 5 February 2015, the 1^st applicant lodged a non-refoulement claim on behalf of the 2^nd applicant.

7.  Their claims, as advanced by the 1^st applicant, are based on their fear of being harmed by the 1^st applicant’s boyfriend, Allan, with whom the 1^st applicant had a relationship from 1990 to 2010.  The 1^st applicant and Allan had three children in the Philippines. The 1^st applicant claims that Allan was physically abusive towards her when he was drunk. In 2011, the 1^st applicant met her current boyfriend, Benjamin Diggs, in Hong Kong and became pregnant with the 2^nd applicant in 2013. After she gave birth to the 2^nd applicant, Allan came to know about the news and had threatened to kill the applicants if they returned to the Philippines. Details of their claims are set out in the Director’s decision at [7] and the Board’s decision at [18].

The Director’s and the Board’s decisions

8.  The applicants’ claims were jointly assessed by the Immigration Department. By a decision dated 27 December 2017, the Director rejected their claims having regard to the torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.

9.  The applicants’ appeals to the Board were heard on 25 October 2018. The 1^st applicant acted in person and the 2^nd applicant was excused from attending the hearing. The Board considered their claims as a composite claim. The 1^st applicant adopted her evidence in the hearing bundle and did not submit any further evidence. By its decision dated 28 December 2018, the Board dismissed the appeal.

10.  In gist, the Board found on the evidence that the 1^st applicant’s claimed fear of harm from Allan did not meet the threshold or requirement for non-refoulement protection under any of the applicable grounds, given the low intensity and frequency of the past ill-treatment which indicated that a future risk of harm is unlikely to materialise. The Board further noted from the country of origin information (COI)  that despite existence of problems of domestic violence in the Philippines and complaints of inefficiency of the police force, reforms have been ongoing and that state protection is available to the applicants upon their return to the Philippines. The Board also assessed that internal relocation to cities such as Quezon and Cebu are viable options.

11.  The Board did not undertake a separate consideration or assessment of the 2^nd applicant’s claim, which was considered to be part and parcel of the 1^st applicant’s claim.

The Judge’s decision

12.  By a Form 86 filed on 19 March 2019, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to judicially review the Board’s decision. They did not put forward any specific grounds for their intended challenge in the Form 86.

13.  An oral hearing took place on 1 February 2023. The 1^st applicant informed the Judge that she has applied for legal aid on 19 December 2022 and the result was still awaited. Subsequent to the hearing, the Director of Legal aid refused the application on 23 February 2023.

14.  By his decision dated 3 October 2023, the Judge refused leave to apply for judicial review and dismissed the application. He gave his reasons at [19] to [25] of the Form CALL-1 as follows:

“19. 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 applicants’ 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).

20. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me the 1^st applicant said she was concerned with her son’s welfare. She did not elaborate what welfare she was referring to.

21. 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.’

22. It is clear that the Board had treated the applicants’ claim as a composite claim. The Court of Appeal in Re: Fabio Arlyn Timogan & Ors. V Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971 held that the applicants’ claim should be separately considered as there might be child specific claim not brought to the Board’s attention. This issue alone is not final because the court has to consider whether this factor alone would give the applicants a reasonable prospect of success in their intended application.

23. The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [[2022] HKCA 1121, Hon. G Lam and Chow JJA, 3 August 2022, following the practice in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33, held:

‘22. In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, found the 1^st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1^st Applicant’s claim. There was, accordingly, no factual basis which could support of the 2^nd Applicant’s claim on any of the applicable grounds.

23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

24. In the premises, we also find that the 2^nd Applicant’s intended judicial review is not reasonably arguable.’

24.   The present case is similar to the above cases as the Board found that the 1^st applicant’s alleged fear of harm from Allan does not exist, state protection will be available and relocation is a viable alternative for the applicants. Devoid of the facts of the 1^st applicant in support of her application, there is no substance in the 2^nd applicant’s application and I fail to see any child-specific issues, which should have been brought to the Board’s consideration, had not been done so. I therefore find that there is no realistic prospect of success in the applicants’ intended judicial review of the Board’s Decision.”  

“25. In the circumstances, I treat non-legal representation of the 2^nd applicant before this Court as procedural irregularity under Order 2 of the RHC without rendering the proceedings a nullity and I dismiss their joint application.”

Applications for extension of time

15.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicants may appeal to the Court of Appeal against the Judge’s order refusing leave to apply for judicial review within 14 days after such refusal. The 14-day period expired on 17 October 2023.

16.  By a summons filed on 26 October 2023 together with supporting affirmation, the applicants applied for an extension of time to appeal the Judge’s decision on the basis that she was having financial problem and could not pay the filing fee.  The Judge dealt with the application on paper and by his decision handed down on 5 February 2024[6] refused the application.

17.  On 16 February 2024, the 1^st applicant filed the present summons and supporting affirmation to make a renewed application to this Court for extension of time to appeal on behalf of herself and the 2^nd applicant, explaining that they did not receive the Judge’s decision of 5 February 2024.

Our reasons for judgment

18.  In deciding whether to extend time for appealing against the Judge’s decision refusing them leave to apply for judicial review, the Court shall consider: (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.

19.  Even if the Court does not accept that the applicant’s explanation for delay is reasonable, the Court would examine the merit of the intended appeal.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

20.  The applicants were 9 days late when they filed the 26 October 2023 summons. While we note that the Form CALL-1 and the Judge’s decision of 5 February 2024 were sent to the applicants’ last known address in Tai Fung Street and had not been returned through undelivered post, given that it was not a substantial delay, we would focus on the merits of the intended appeal, which is the most important consideration.  

21.  In assessing the merit of the intended appeal, we 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].

22.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

23.  The applicants’ summons and supporting affirmation did not set out any grounds in support of the intended appeal.  

24.  In the case of the 1^st applicant, given that she has not pointed to any errors, irregularities or unfairness in the process before the Director or in the appeal before the Board, her intended appeal simply does not have any prospect of success.

25.  In the case of the 2^nd applicant, we are mindful of the fact that he is a minor and has not been legally represented in the proceedings below and in this Court, as required by Order 80 rule 2 of the Rules of the High Court. We have examined the Board’s decision with particular regard to his case in light of the need to separately consider whether his claim had been properly assessed and determined by the Board in a manner sufficient to meet the high standards of fairness required, and to see whether there are matters that may support potential minor-specific non-refoulement bases that had not been made to the Board owing to the lack of representation: Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33].

26.  The 2^nd applicant’s claim was founded solely on the basis of the 1^st applicant’s claim, namely, risks of harm from Allan in the Philippines. The Board found on the evidence that the claim of risks of harm and fear did not meet the threshold or requirement for non-refoulement protection under any of the applicable grounds. The Board further found on the basis of the COI that the applicants would have access to state protection in the Philippines upon their return and internal relocation was reasonably available.  In the circumstances of the present case, these findings of the Board apply to the case of the 2^nd applicant.   

27.  Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant may separately face in the Philippines. 

28.  On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29.  In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.

30.  We will treat the non-compliance with Order 80 rule 2 and the 2^nd applicant’s lack of legal representation as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.

Disposition

31.  As both applicants’ intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 16 February 2024.