RE BALAY YA NELSA KICHAYAN

CAMP 191/2022, [2024] HKCA 328

On Appeal From [2022] HKCFI 714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 191 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2778 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a summons filed on 13 June 2022, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 23 May 2022. By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022])  HKCFI 1347)  (“the EOT Decision”)  against his earlier order dated 21 March 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 714)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 19 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 17 January 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

4.  Subsequently, by a letter to the court dated 21 September 2023, the applicant stated that as the problem in her home country was settled and she wanted to return to her home country, she requested to withdraw her judicial review application.

5.  On the basis of her request to withdraw her application, we dismiss the applicant’s present application for extension of time to appeal.  In any event, her application fails for lack of merit, which we will explain further below.

Background

6.  The applicant is a national of the Philippines.  She last arrived in Hong Kong as a domestic helper and was permitted to remain until 30 May 2016 or two weeks after termination of contract, whichever was earlier.  On 30 May 2016, she applied for extension of stay but her application was refused.  On 19 August 2016, she was convicted of the offence of overstaying and sentenced to four weeks’ imprisonment, suspended for three years.  She was released on recognizance on 31 August 2016.  By way of written representation dated 21 September 2016, she lodged a non-refoulement claim on the basis that if refouled, she would be harmed or killed by her husband Reny as her husband accused her of having an affair in Hong Kong and assaulted her.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

7.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

8.  The applicant then appealed against the Director’s Decision to the Board.  She attended an oral hearing before the Board on 11 October 2018 and answered the Board’s inquiries.  The Board dismissed her appeal on 19 November 2018 and confirmed the Director’s Decision.  The Board considered that there were significant inconsistencies and implausibility in the applicant’s oral evidence and written claims.  The Board also considered that she had not told the truth about material aspects of her circumstances.  Having assessed the evidence, the Board did not accept that the applicant would face harm of any kind in the Philippines for any reason if refouled.  The Board further found that the applicant could safely relocate to another part of the Philippines.  Accordingly, the Board considered that the applicant had failed to substantiate her claim on all applicable grounds and dismissed her appeal.

The Leave Decision

9.  On 6 December 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  However, no ground of challenge was put forth by the applicant in her Form 86 or supporting affirmation.  As she did not request for an oral hearing, the Deputy Judge considered her application on paper.

10.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [12] - [18] of the Leave Decision:

“12. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

14. 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.’

15. The Board did not accept her evidence on the facts of her case. There is no valid reason from the applicant to challenge the Board’s Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

The EOT Decision

11.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

12.  On 14 April 2022, the applicant filed a summons together with a supporting affidavit for extension of time to appeal against the Leave Decision.  In the present case, the original deadline for the applicant to appeal against the Leave Decision fell on 4 April 2022.  Due to closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period automatically extended to 12 April 2022.  Accordingly, she was two days late for her intended appeal.  In her supporting affidavit, the applicant explained that she could not file her intended appeal within time because the Court Registry was closed on 21 March 2022 and she asked for extension of time to appeal.

13.  By the EOT Decision, the Deputy Judge found the delay of two days to be insignificant.  However, the Deputy Judge noted that the applicant had failed to set out any valid ground to challenge the Board’s Decision.  Accordingly, the Deputy Judge considered the applicant did not have any realistic prospect of success in her intended appeal and refused to extend time for her intended appeal.

The Present Application

14.  On 13 June 2022, the applicant filed a summons and supporting affidavit applying for leave to appeal against the EOT Decision.  In her summons, she failed to give any reason in support of her application.  In her supporting affidavit, she asserted that she disagreed with the decisions made and did not think her case was determined fairly.

15.  Pursuant to the directions of the Registrar of Civil Appeals made on 13 June 2022, the applicant lodged her written submissions on 27 June 2022.  In those submissions, she repeated her disagreement with the decisions made by the Director and the Board and her complaint that her case was not determined fairly.  She further complained that the Director and the Board had not carefully assessed her case and erred in finding state protection available in the Philippines where corruption remains and the authorities are ineffective.  She contended that the adjudicators should take into account the real procedural unfairness throughout the case and put aside the public policy of trying to dispose of non-refoulement claims as quickly as possible.  She also contended that the discriminatory act of the authorities towards non-refoulement claimants in the quick disposal of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

Discussion

16.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  Although a delay of two days is not substantial, the prospect of success of the intended appeal is important and the Court will not grant extension for a hopeless appeal to be pursued: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

19.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

20.  In our view, her application has no merit at all and must fail.  The arguments raised in her supporting affidavit and written submissions are all new grounds.  It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

21.  More importantly, her written submissions are all general and bare assertions.  They are complaints directed at the Director and the Board.  She has not identified any error with specific particulars on why the Deputy Judge was wrong in his reasons.  Accordingly, none of her submissions are proper grounds of appeal: Re Farrukh Zaib, supra, at [28].

22.  Further, as repeatedly emphasised by this court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration, supra, at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

23.  In any event, in the present case, we agree with the Deputy Judge that the Board rejected the applicant’s claim on the basis of finding material aspects of her claim to be incredible.  The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board.  In the premises, we see no basis to interfere with the Leave Decision.

24.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 13 June 2022 is dismissed.