RE TICUALA ISABEL MAGNA SAY-EO

CACV 429/2020

[2021] HKCA 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 429 OF 2020

(ON APPEAL FROM HCAL NO. 473 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 June 2020[1] refusing to extend time for her to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 10 September 2015 rejecting her non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 3 March 2017 dismissing her appeal against the Director’s decision.

2.  The applicant has consented to the appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of the Philippines aged 43.  She had since 1997 worked in Hong Kong as a domestic helper.  Her last employment contract was terminated on 26 August 2006 and she was permitted to remain until 9 September 2006.  She overstayed and was arrested by the police on 11 April 2009.  On 14 April 2009, she raised a torture claim which was rejected on 19 February 2013.  She did not appeal against the decision.  On 19 June 2013, she raised a non-refoulement claim.  

4.  The applicant’s claim is based on fear of being harmed or killed by three moneylenders because she failed to repay the loans from them.  Her claim was set out in detail in the Director’s decision at [7] and the Board’s decision at [3] to [14], and summarised by the Judge in [2] to [6] of the Form CALL-1. 

5.  In gist, the applicant claims that she had made three loans to enable her to work as domestic helper in Korea and Hong Kong. Owing to her financial commitments to the family, she did not have enough money from her salary to repay the loans.  As a result, the moneylenders had sent death threats while one of the creditors had confiscated her mother’s house after her death as part repayment of the loan.  Fearing for her safety, she overstayed in Hong Kong after her employment contract was terminated.  

6.  By his decision dated 10 September 2015, the Director rejected the applicant’s claim having regard to the persecution risk[2] and BOR 3 risk[3] grounds.  No assessment on torture risk[4] ground was made in view of the earlier rejection of the applicant’s torture claim.

7.  The applicant appealed the Director’s decision to the Board.  The Board heard her appeal at an oral hearing held on 12 August 2016 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 3 March 2017, the Board dismissed the appeal.  In summary, the Board doubted the applicant’s claim of being pursued by creditors due to failure to repay her loans.  The Board further considered that even if her claim is true, the risk of harm would be lowered or negated by the availability of state protection and internal relocation alternatives.  The Board concluded that she failed to make out a case for non-refoulement protection.

8.  By a further decision dated 19 April 2017, the Director assessed the applicant’s claim on the BOR 2 risk[5] ground and decided against it.  The applicant lodged an appeal against the further decision which was heard by the Board at an oral hearing on 15 October 2018. By its decision dated 31 October 2018, the Board dismissed the appeal on the ground that there was no basis for the application of the BOR 2 risk ground.

9.  Prior to the Director’s further decision and the Board’s rejection of the second appeal, the applicant had on 23 March 2018 filed a Form 86 to apply for leave to judicially review the first decision of the Director and the Board’s decision of 3 March 2017 dismissing her appeal against it.  Other than stating in her supporting affidavit that she disagreed with the Director’s decision and that her dangerous situation had been disregarded, the applicant did not provide any ground for seeking relief in either the Form 86 or her affidavit.

10.  The applicant did not request an oral hearing. The Judge dealt with the application on the paper.  For reasons set out in [14] to [21] of the Form CALL-1, the Judge refused to extend the time for applying judicial review and dismissed the application:

“14.  By then she was also late with her Form 86, as Order 53 Rule 4(1) of the High Court Ordinance, Cap. 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the three-month period for the Applicant to file her Form 86 for judicial review of the Board’s First Decision fell on 3 June 2017, she was therefore late by more than 9 months with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of more than 9 months must be regarded as very substantial or excessive, for which she failed to provide any explanation either in her Form or supporting affidavit, and given the fact that she can clearly read and write English and there is no evidence of her being detained by the Immigration Department at that time, I am unable to find any valid explanation for her serious delay.

17.  As for the merits of her intended challenge, as noted above, in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board either.

18.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly her leave application is dismissed.”

11.  By his decision dated 27 August 2020[6], the Judge extended the time for the applicant to appeal his decision of 3 June 2020.

12.  The applicant filed the notice of appeal on 4 September 2020.  She gave the following as her grounds of appeal:

“[The applicant] will face hardship if he [sic] is to return to his [sic] home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in the making groundless speculations.”

13.  The applicant had put in a written submission which cited passages from cases on the high standards of fairness, and argued that as the decision has the effect of finally disposing of the applicant’s claim with real and significant implications for her substantive right not to be subject to torture, high standard of fairness is required.

14.  We heard the appeal on 8 March 2021.  At the hearing, the applicant indicated she had nothing to add.

15.  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].

16.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

17.  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

18.  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, 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.

19.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal. Firstly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant was more than nine months late when she filed the Form 86, and the Judge refused to extend the time for her to bring judicial review.  None of the grounds or arguments put forward by the applicant has addressed the Judge’s decision not to extend time.  She has not identified any error in the Judge’s reasons. 

20.  Secondly, the grounds of appeal contained in the notice of appeal and the written submission had not been argued before the Judge.  It is not permissible for an appellant to advance new grounds that had not been argued in the court below.  In any event, evaluation of risk of harm and assessment of country of origin information are matters for the primary decision makers and not for the court.  The Board had rejected the applicant’s case as not credible and considered that even if her claim is true, her risk of being harmed will be lowered or negated by the availability of state protection and internal relocation alternatives.  The applicant has not advanced any substantive ground to challenge these findings of the Board.  Her bare assertions that the Board was wrong and/or she will be in danger if she returns to the Philippines are not proper grounds for judicial review.     

21.  Thirdly, the written submission only contains general propositions of law without showing how they can relate to the applicant’s appeal. 

22.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We agree with the Judge that there is no basis for extending the time to apply for judicial review.  Accordingly, we dismiss the appeal.