TOLENTINO GIRLIE TALAMOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 53/2024, [2024] HKCA 875

On Appeal From [2023] HKCFI 1784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 53 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 877 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K.W. Lung (“Judge”)  dated 18 July 2023[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 28 March 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 13 July 2018 rejecting her non-refoulement claim.

2.  On 20 March 2024, the Judge refused to extend time for the applicant to appeal against his decision of 18 July 2023.

Background

3.  The applicant is a national of the Philippines born in 1972.  She had previously worked in Hong Kong as a foreign domestic helper.  The applicant last entered Hong Kong on 28 November 2017 and was permitted to remain as a foreign domestic helper until 9 November 2019 or two weeks after termination of the employment contract, whichever is earlier.  Her employment contract was prematurely terminated on 1 December 2017, but she did not depart within 14 days and overstayed.  The applicant was subsequently arrested by the police on 16 January 2018.  On 17 January 2018, she raised a non-refoulement claim by way of written significations  on the basis that she would be harmed or killed by a loan shark (Mr. Chan)  as a result of her inability to repay the loans, if she was refouled to the Philippines.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 13 July 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 10 January 2019, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 28 March 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [9] to [10] of the Form CALL-1:

“ 9. Having considered the evidence, the Board rejected the applicant’s claim. In particular, the Board noted that the applicant’s oral evidence was vague and lacked specifics. It was also inherently inconsistent with those in her written statement or before the Director. For example, the applicant provided confusing accounts as to her capacity in these loans, whether she was a guarantor to her sister’s loan agreement or whether it was a joint loan agreement signed by both of them [24]-[25]. As this remained the crux of her claim and the applicant was unable to provide cogent explanations for the discrepancies, the Board considered it damaging to her credibility [26]. Further, the applicant did not take any steps to inquire her sister’s whereabouts after she claimed that her sister went disappeared. It indicated that she was not fearful that her sister disappeared due to the outstanding loans [27]. In addition, she was unable to provide any details of the loan sharks but only a bare assertion that they were powerful [28].

10.  In light of the aforesaid findings, the Board concluded that the applicant’s claim was unsubstantiated and thus dismissed her appeal.”

The Judge’s decisions in the court below

6.  On 1 April 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision, without specifying any grounds in that form.  In the supporting affirmation, the applicant merely annexed the Board’s decision together with its covering letter and the hearing bundle used before the Board.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 18 July 2023, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“ 13. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

15. 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.’

16. The Board, for the reasons above, refused to accept her evidence in support of her claim. There is no valid ground to challenge the Board’s Decision.

17. 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.

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

8.  Around 4 months after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A)  (excluding August 2023 being the court vacation), the applicant filed a summons on 9 January 2024 together with a supporting affirmation to apply for extension of time for filing a notice of appeal.  In her affirmation, the applicant stated the reason for her delay was that she did not receive the letter from the High Court.  On 20 March 2024, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in her intended appeal.

The renewed application before this Court

9.  By summons filed on 21 March 2024, the applicant made an application to this court for leave to appeal against the Judge’s decision dated 18 July 2023.  In the applicant’s supporting affirmation, she stated that she wished to appeal the Judge’s decision and annexed a copy of the decision dated 20 March 2024.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 18 July 2023 refusing leave for judicial review. 

10.  The applicant lodged written submissions stating that the Board failed to make sufficient inquiries with the Philippines authorities, that the Board failed to consider the reason why she ran away from the Philippines if she did not have any problems, that the Board refused her appeal without any reason, and that she feared for her life if she returned to the Philippines. She further attached a document entitled “Grounds on which Relief is Sought” stating the legal principles of fairness and unreasonableness.  The grounds stated included that the Board misdirected itself on the law in relation to past torture, that the Board failed to carry out sufficient research and inquiry for relevant and up-to-date COI, that the Board acted irrationally by failing to take into account relevant COI, that the Board failed to find that there was a consistent pattern of gross, flagrant or mass violations of human rights in the Philippines, that the Board failed to assess whether state protection existed in the Philippines, that the Board took into account irrelevant considerations that were incorrect, inaccurate or not based on facts, that the Director and the Board failed to call for psychological and psychiatric evaluations and reports, that the Board applied the incorrect standard of proof, and that there was no fair procedure due to a lack of or insufficient legal representation.

11.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing, despite the applicant’s request for an oral hearing in her written submissions.

Discussion

12.  The applicant was late for over 4 months when she filed her initial summons for extension of time on 9 January 2024.  In her supporting affirmation, the applicant stated that she did not receive the letter from the lower court, without any further elaboration. As the court record showed that the letter was sent to her last known address without being returned undelivered, the court will not extend time unless there are real prospects of success in the intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had heard the applicant and assessed her evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim because it considered that the applicant was not a witness of truth, that the central elements of her claim about how she secured her loans at different times were inconsistent, that she was unable to provide any information about the loan shark aside from him being Muslim and must therefore be connected with “rebels”, and that there was no credence to any of her assertions.  As a result of the Board’s findings of facts, it did not find any risk of harm if the applicant was refouled to the Philippines.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds in her application for leave to apply for judicial review.  As to the applicant’s purported “grounds” attached to her written submissions, they consist of mere general and bald assertions regarding the decision of the Board without any application to her own case.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

16.  It is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10]. The Applicant was legally represented in the completion of her non-refoulement claim form and during the vetting process of the Director, which contained the same factual claims relied upon by the applicant in the subsequent processes. We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness. 

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 21 March 2024 is accordingly dismissed.