SISNORIO MICHELE SOL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 36/2023, [2023] HKCA 742

On appeal from [2022] HKCFI 2970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 36 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2293 OF 2018)

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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):

Background

1.  On 27 September 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.  On 3 January 2023, the applicant filed a summons for extension of time to appeal against that decision at the Court of First Instance. On 30 January 2023, the summons was dismissed by the judge[2] and the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

3.  The applicant is a national of the Philippines. She entered Hong Kong to work as a domestic helper on 25 July 2016. She did not depart from Hong Kong after the termination of her contract and subsequently overstayed. She surrendered to the Immigration Department on 24 October 2016 and raised a non-refoulement claim in January 2017. Her claim was made on the basis that she would be harmed or killed by her husband and her sister-in-law if she returns to the Philippines.

The decisions of the Director and the Board

4.  By a Notice of Decision dated 7 February 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].

5.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 19 June 2018. The Board considered there is insufficient evidence to show any state involvement in the conduct of the applicant’s estranged husband and sister-in-law who are not public officials and are not acting in an official capacity. Although the Board accepted that the type of harm the applicant fears from her husband and sister-in-law would come within the meaning of degrading treatment, the Board considered it would be reasonable for the applicant to relocate to a large town or city if she returns to the Philippines where she would not be at the risk of being subjected to degrading treatment or persecution. The Board also found there is nothing to show that the state would withhold or deny protection to the applicant. In conclusion, the Board held that the applicant is not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 15 October 2018.

The intended judicial review

6.  On 22 October 2018, the applicant filed a Form 86 and an affidavit in HCAL 2293/2018 to seek leave to bring judicial review against the decision of the Board. She stated in her supporting affidavit that the decision dated 15 October 2018 is biased and unreasonable.

The judge’s decision

7.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant does not have any valid reason to challenge the Board’s decision. The judge also found there is no error of law or procedural unfairness in the decision of the Board. As there is no realistic prospect of success in the intended judicial review, the judge dismissed the leave application on 27 September 2022.

Grounds of intended appeal

8.  In the present summons, the applicant stated that she would like a review of her case because her life is in danger and she cannot go back to her country.

9.  In her written submissions, she reiterated the problems she faced in the Philippines and submitted that she does not want to take the risk of going back so she seeks more time to stay in Hong Kong.

Analysis and disposition

10.  In considering whether to extend time to appeal 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.

11.  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 27 September 2022 and the applicant was late by more than 3 months when she took out the summons for extension of time to appeal at the court below on 3 January 2023. In her supporting affidavit, she explained that she missed the letter because she did not provide her new address to the court.

12.  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). As the delay is caused by the applicant’s failure to notify the court of her change of address, her delay in lodging the appeal is not justifiable.

13.  As the delay is inexcusable, the applicant 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.  In the present application, the applicant failed to show that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

16.  We agree with the judge there is no reasonably arguable ground for judicial review. There is no prospect of success in the intended appeal, let alone any real prospect of success. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 27 September 2022 and dismiss the summons filed on 30 January 2023.