QUINTERO HASLE CALISE v. TORTURE CLAIMS APPEAL BOARD

CAMP 104/2018

[2018] HKCA 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 104 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 1076/2017)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

INTRODUCTION

1.  On 4 May 2018, Deputy High Court Judge Bruno Chan refused to grant the applicant leave to apply for judicial review (‘the Judge’ and ‘the Judge’s Decision”) against the Decision of the Torture Claims Appeal Board dated 23 November 2017 (“the Board” and “the Board’s Decision”).

2.  By a summons dated 11 July 2018, with supporting affirmation, the applicant applied to this Court for an extension of time to appeal against the Judge’s Decision (‘the Summons Application’).

3.  Pursuant to the directions of the Registrar of Civil Appeals dated 17 July 2018 and 10 August 2018, the applicant has, on 28 August 2018, filed written submissions in support of the Summons Application.  Those submissions were written Tagalog. On 26 October 2018, a Tagalog-to-English translation of the said written submissions was provided to the Court by the Court Language Section.

4.  Pursuant to the directions of the Registrar of Civil Appeals dated 17 July 2018, the Court will now deal with the Summons Application on paper.

BACKGROUND

5.  The basis of the applicant’s torture claim was that, if she were to return to the Philippines, she would be harmed or killed by her abusive husband.  The following are the details.

6.  The applicant was born and raised in the Philippines.  She married her present husband with whom she had two sons.  Her husband became an alcoholic.  They had frequent quarrels, and her husband became abusive.  In 2006, her husband’s abusive behaviour escaled to hitting and kicking the applicant.  In 2009, the applicant left the Philippines for Hong Kong to work as a foreign domestic helper, returning to the Philippines only on occasion to visit her sons and to stay at her parents’ place.  In 2012, when the applicant was meeting her husband, her husband asked the applicant for money which and the applicant refused to provide.  The husband then punched the applicant in the stomach, pulled out a gun and fired once at the ceiling.  The applicant fled and hid at her uncle’s place. In around July 2012, the applicant came to Hong Kong and overstayed.

THE DIRECTOR’S DECISION

7.  The Director of Immigration decided against the applicant’s torture claim on 28 October 2016 (‘the Director’ and ‘the Director’s Decision’).  The Director’s Decision covered the applicant’s rights under Article 2 (right to life) and Article 3 (right against torture and cruel and inhuman treatment etc) of Bill of Rights, as well as her other statutory and convention rights against torture and persecution.

THE BOARD’S DECISION

8.  The applicant appealed the Director’s Decision to the Board on 11 November 2016, whose oral hearing was conducted on 27 September 2017.  The Board dismissed the applicant’s appeal on 23 November 2017.

THE JUDGE’S DECISION

9.  Having considered the applicant’s Form 86 and supporting affirmation in his application for leave to judicially review the Board’s Decision, the Judge held as follows :

“ 8. On 14 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in her supporting affirmation of the same date did she set out any grounds for her intended challenge, and at the oral hearing of her leave application she just asked the court to carefully review that decision of the Board without making any further submission.

9. As clearly stated in CH v Director of Immigration [2011] 3 HKLRD 101, high standards of fairness do not entitle the applicant to just make the claim and then simply sit back for the Court to look to see if any ground or basis which may exist to support her intended challenge, and on the facts of the case and the expressed findings by both the Director and the Board that state protection and reasonable internal relocation alternatives are available to the applicant upon returning to the Philippines away from whatever risk of harm that may come from her husband, I am unable to think of any reasonably arguable basis that the applicant may rely on for her intended application for judicial review

10. Nevertheless, having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

11. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application…”

THE SUMMONS APPLICATION

10.  In the applicant’s Summons dated 11 July 2018, it was simply stated that “Judgement (sic) is annresonable (sic)” (‘the Unreasonable Judgment Argument’).  As supporting affidavit, a copy of the Board’s Decision, and nothing else, was attached.

11.  As regards the applicant’s written submissions of 28 August 2018, they amounted essentially to a regurgitation of the facts claimed, plus an attaching bundle of COI materials which the Board had dealt with.  The only thing new, hence a matter not before the Board, was that the husband and his associates had allegedly injured the applicant’s brother.  This incident allegedly took place “last year”, when the former failed to extract information about the applicant from the latter (‘the Written Submissions Arguments’).

DISCUSSION

12.  According to Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134,and also Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(a)  The length of the delay;

(b)  Reasons for the delay;

(c)  The Prospect of the intended appeal; and

(d)  The prejudice to the putative respondent if extension of time was granted.

13.  The deadline for the applicant to lodge his Summons Application to appeal the Judge’s Decision was 18 May 2018, ie 14 days from 4 May 2018: RHC O53 r3(4).  The applicant did not file her application until 11 July 2018.  The applicant’s delay of almost 2 months was substantial.

14.  The long delay, together with the lack of any reason for the delay, are sufficient for the Court to refuse the applicant’s Summons Application.  Out of an abundance of caution, we will further consider the merit of the applicant’s application, as follows.

15.  No grounds have been advanced to support the applicant’s bare assertion that the Judge’s Decision was unreasonable.  The Unreasonable Judgment Argument is therefore not reasonably arguable.

16.  The applicant’s written submissions are repetitive of the findings of fact by the Director and/or the Board.  They refer to COI materials that have been dealt with by the Board.

17.  As we have said many times before, the evaluation of risk of harm is primarily a matter for the Director and the Board, and they are entitled to make any such evaluation based on the evidence before them.  The Court of Appeal will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment of the Board in the hope that the Court may consider the matter afresh in the absence of any legal error.  See Re Lakhwinder Singh [2018] HKCA 246, Re Daljit Singh [2018] HKCA 328 and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

18.  Regarding the new allegation that the applicant’s husband had assaulted the applicant’s brother, it is trite that this Court will not generally entertain new arguments which are fact-and-evidence sensitive, and which have not been canvassed at the Court of First Instance, and for which leave has not been sought within time: Re Qadir Sher [2018] HKCA 160, United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA.

19.  For reasons stated above, there is no merit in the Written Submissions Arguments.

DISPOSAL

20.  In our judgment, it cannot be said that there is any error of law or procedure in the proceedings before the Board and the Judge, or that there is any reasonably arguable basis to challenge the fairness of those proceedings.  The Judge was correct to hold that leave to apply for judicial review should not be granted.  Likewise, there is no merit in the present application for an extension of time to apply for leave to appeal and the Summons Application must be dismissed.

21.  Since the application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court that the applicant may not request for our determination to be reconsidered at an oral hearing.

USE OF OFFICIAL LANGUAGES

22.  As said, the applicant had filed her written submissions in Tagalog.  However, it is clearly provided in section 3(1) of the Official Languages Ordinance (Cap 5) that :

“ The English and Chinese languages are declared to be the official languages of Hong Kong for the purposes of communication between the Government or any public officer and members of the public and for court proceedings.”

23.  We would urge all torture claimants to comply strictly with section 3(1) of the Official Languages Ordinance (Cap 5).