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CAMP 399/2021
[2022] HKCA 414
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 399 OF 2021
(ON APPEAL FROM HCAL NO 2922 OF 2018)
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| BETWEEN |
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CHARACO CHARACO GENESIS HAIDEE |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
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| Before: |
Hon Au and Chow JJA in Court |
| Date of Written Submissions: |
5 October 2021 |
| Date of Judgment: |
23 March 2022 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 21 September 2021, the Applicant took out a summons with a supporting affidavit seeking leave to file a notice of appeal within 14 days against the order of Deputy High Court Judge P Li (“the Judge”) dated 9 September 2021 refusing to grant the Applicant an extension of time to appeal. The intended appeal was against the Judge’s earlier order dated 25 March 2021 refusing to grant the Applicant leave to apply for judicial review.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.
BACKGROUND
3. The Applicant is a national of Venezuela. She came to Hong Kong on 22 February 2018 via Colombia and China. She claimed that she was invited by a church for a sharing and was allowed to stay until 23 May 2018. She overstayed and surrendered to the Immigration Department on 28 May 2018, and made a non-refoulement claim on 4 June 2018. Her claim is based on an alleged fear of being harmed or even killed by the cousin of her former boyfriend whom the cousin alleged failed to repay a loan of US$20,000. Details of the Applicant’s claim have been summarised by the Judge at §§1-10 of the CALL-1 Form ([2021] HKCFI 763).
4. By a Notice of Decision dated 28 August 2018, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).
5. The Torture Claims Appeal Board (“the Board”) received the Applicant’s appeal against the Director’s Decision on 13 September 2018. On 11 December 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”). The Board considered that the Applicant had failed to show that there was any well-founded fear of torture or persecution or any real risk of prohibited treatment under BOR 2 and BOR 3 (§§62-65). The Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.
THE JUDGE’S DECISION
6. On 19 December 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.
7. On 25 March 2021, the Judge refused to grant leave to the Applicant to apply for judicial review. At §§15-16 of the Form CALL-1, the Judge stated as follows:
“15. The applicant filed the leave application for judicial review on 19/12/2018. In her affirmation, she stressed that the decision of the TCAB was unfair. There was no specific unfairness alleged.
16. In my view, the case of the applicant only supports a private dispute on a debt. It cannot establish any claim warranting non-refoulement protection. There is no error of fact and law. The decision is reasonable.”
8. On 29 April 2021, the Applicant issued a summons applying for extension of time to appeal. As earlier mentioned, on 9 September 2021, the Judge refused to extend time for the Applicant’s appeal and dismissed her application.
THIS APPLICATION
9. By a summons taken out on 21 September 2021, the Applicant applied to this Court seeking leave to file a notice of appeal within 14 days against the order of the Judge dated 9 September 2021. In her supporting affidavit filed on 21 September 2021, the Applicant stated that the decision was not fair.
10. In her 4-page written submissions dated 5 October 2021, the Applicant states that she was involved in a dispute over a debt and repeats the factual basis of her non-refoulement claim. She also says that she did not receive the court’s decision earlier because she had failed to inform the court of a change of her residential address, and was only informed of the court’s decision when she reported to the Castle Peak Bay Immigration Center on 4 April 2021.
DISCUSSION
11. Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.
12. In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
13. The prospect of success of the intended appeal is important. The court will not grant extension to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.
14. The court’s 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.
15. The Applicant’s delay of 3 weeks to lodge her appeal is substantial. The delay was caused by her own failure to inform the court of a change of her residential address. We do not consider that there is a good excuse for the delay. Regarding the chances of the appeal, the Applicant has merely repeated the factual basis of her non-refoulement claim. It is trite, however, that assessment of evidence on risk of harm, COI, state protection and viability of internal relocation are primarily within the province of the Director and the Board, and the court would generally not interfere with their assessment in the absence of error of law, irrationality or procedural unfairness: Re Kartini [2019] HKCA 1022.
16. Overall, the Applicant has failed to raise any reasonably arguable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.
DISPOSITION
17. The application for extension of time to appeal is refused, and the Applicant’s summons of 21 September 2021 is dismissed.
(Thomas Au)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.
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