PASCUA JANICE ALCARAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 106/2024, [2025] HKCA 579

On appeal from [2023] HKCFI 2910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 106 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1347 OF 2019)

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J U D G M E N T

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

1.  On 23 November 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  On 19 February 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by the judge on 31 May 2024[2].

3.  On 17 June 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of the Philippines. She last entered Hong Kong as a visitor on 10 January 2010 and subsequently overstayed. She surrendered to the Immigration Department on 20 September 2017. She lodged a non-refoulement claim on 9 October 2017 on the basis that, if refouled, she would be kidnapped, tortured, raped or killed by her husband’s brothers.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 29 October 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant filed her Notice of Appeal with the Board on 9 November 2018. She attended a hearing before the Board on 25 February 2019. The Board accepted there is a real risk that the applicant would suffer mistreatment that would constitute cruel, inhuman or degrading treatment or punishment (“CIDTP”) if she returned to her home area in the reasonably foreseeable future. However, the Board held there is insufficient evidence to be satisfied there are substantial grounds to believe that there would be any state involvement, and found that the applicant’s husband and his brothers were not and would not be acting in any official capacity. The Board did not consider there are substantial grounds to believe that the police force in the Philippines would deliberately withhold protection from the applicant in the claimed circumstances, even if assuming that her husband’s family has some association and connections with people of influence and political connection. The Board further found that the applicant’s problem was for personal reasons and revenge, not because of any of the reasons set out in the Refugee Convention. In addition, the Board found it would be reasonable for the applicant to relocate to a large town or city if she returns to the Philippines to avoid the risk of being subjected to CIDTP. Therefore, the Board concluded that the applicant is not entitled to non-refoulement protection in Hong Kong on the applicable grounds and rejected the appeal on 23 April 2019.

The intended judicial review

7.  On 20 May 2019, the applicant filed a Form 86 and an affirmation in HCAL 1347/2019 to seek leave to bring judicial review against the Board’s decision. She put forward the following grounds for her intended challenge:

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that it did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)  The Board’s decision is unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness.

(4)  The Board has failed to meet the greater care and duty owed to a self-represented claimant.

The judge’s decision

8.  The applicant attended a hearing of the leave application before DHCJ K W Lung on 31 May 2023. The judge held that the applicant did not have any valid ground to challenge the Board’s decision. The judge further found there is no error of law or procedural unfairness in the Board’s decision. The judge concluded there is no realistic prospect of success in the intended judicial review and dismissed the leave application on 23 November 2023.

Grounds of intended appeal

9.  The applicant stated in her supporting affirmation that the decision of the judge has been reached unfairly without giving her an opportunity to clarify her case and the situation in her country.

10.  In her written submissions, she stated that high standards of fairness were required in the determination of a torture claim on the part of the decision maker and the decision maker was under a duty to act fairly. She further submitted that the Board failed to scrutinise the Director’s decision and did not consider matters such as the country conditions of her country of origin.

Analysis and disposition

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 23 November 2023 and the applicant was late by more than 2 months when she took out the summons at the court below on 19 February 2024. She explained that she was unware of the time limit of the appeal as she is a litigant in person and did not receive any decision of the court.

13.  The applicant’s ignorance of the rules of the court is not a justification for the delay. Besides, the court sent the judge’s decision to the applicant’s address by post on 23 November 2023, which was not returned by the post office. It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Under these circumstances, the applicant’s delay is inexcusable. Therefore, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  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.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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 applicant had filed an affirmation with the Court of First Instance and was given the opportunity to make oral submissions at the hearing before the judge. Her complaint that she was not given an opportunity to clarify her case and situation is without basis.

17.  The rest of her grounds and submissions are just bare assertions without evidence in support. In particular, the Board has set out its analysis and reasoning in its decision in detail, which included its consideration of the country of origin information. The applicant failed to show there are errors of law or procedural unfairness or irrationality in the decision of the Board. She also failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  For the above reasons, there is no prospect of success in the intended appeal. Therefore, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 23 November 2023 and dismiss the summons filed on 17 June 2024.