RE MAHILUM ARLYN AROPO

CACV 552/2020

[2021] HKCA 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 552 OF 2020

(ON APPEAL FROM HCAL NO. 1894 OF 2018)

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court) :

1)  The appeal

1. This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung in which he refused to grant extension of time for leave to the applicant to apply for judicial review.

2)  Factual background

2.1 The applicant is a national of the Philippines.  She came to Hong Kong and took up employment as a domestic helper. Her contract was terminated and she overstayed. She surrendered to the Immigration Department. She later lodged a non-refoulement claim.  

2.2 The basis of the applicant’s claim is that she would be harmed or killed by Maulya, who was the applicant’s boyfriend between year 2000 to 2010.

3)  The Director’s Decision and the Director’s Further Decision

3.1 The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 8 June 2016. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2 The Director decided against the applicant’s right to life claim on 28 June 2017 (“the Director’s Further Decision”). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (“BOR 2”).

4)  The Board’s Decision

4.1 The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Torture Claims Appeal Board (‘the Board’). After a hearing held on 15 December 2017, the applicant’s claim was dismissed by the Board on 23 March 2018.

4.2 The Board held that the real reason for the applicant leaving the Philippines was for earning more money overseas. The applicant’s intention to seek protection in Hong Kong was suspicious. The alleged extent and nature of injury sustained by the applicant failed to attain minimum level of severity. The applicant failed to report the matter to the police. The applicant failed on all applicable grounds.

5)  Decision of the Judge

5.1 The applicant filed her Form 86 out of time, seeking for leave for judicial review on 10 September 2018. In her supporting affirmation, the applicant did not provide any grounds for leave for judicial review.

5.2 On 29 June 2020, the Judge held that there was nothing to show that the Board made any error in its finding of facts or in its application of the law. The applicant had no reasonable prospect of success in her proposed judicial review. The Judge refused to extend time for the applicant to apply for leave to apply for judicial review.

5.3 On 29 September 2020, Deputy High Court Judge C P Pang granted the applicant extension of time to file her Notice of Appeal.

6)  Grounds of appeal

6.1 Doing the best that we could read from the applicant’s notice of appeal, she stated that the Judge totally followed the decision of the Board.

6.2 Doing the best that we could read from the applicant’s written submissions, the applicant stated that she is now currently living with her boyfriend and two children in Hong Kong. She prays for the Court to grant her time to stay.

7)  Our view

7.1 We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2 It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy High Court Judge K W Lung in assessing the Board’s Decision.

7.3 We see no basis to disturb the Deputy High Court Judge’s Decision. Accordingly, the appeal is dismissed.