SANTIAGO JASMIN CARDINES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 159/2025, [2025] HKCA 698

On Appeal From [2025] HKCFI 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2025

(ON APPEAL FROM HCAL NO 3017 OF 2019)

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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.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 18 March 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 August 2018.

BACKGROUND

2.  The Applicant is a national of the Philippines. She last entered Hong Kong to work as a foreign domestic helper on 2 February 2012. Upon the termination of her employment contract, she did not depart and had overstayed since 12 June 2012[1]. On 7 June 2015, she was arrested by the police. On 14 August 2015, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by the people of a money lender for defaulting on her loan repayments. Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of his judgment dated 18 March 2025 (“the Judgment”).

3.  By a Notice of Decision dated 8 August 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[2], BOR 3 risk[3], persecution risk[4], and risk of torture[5].

4.  The Applicant appealed the Director’s Decision to the Board. On 14 May 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the Judgment, as follows:

“Having considered the applicant’s evidence, the Board found that the [Applicant] does not have a real risk of being subjected to any of the applicable risks. [72]-[83]. The Board had also found that internal relocation is viable for the [Applicant]. [76].”

THE JUDGMENT

5.  On 14 October 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. By then, she was 2 months late in making her leave application. No ground for seeking relief was given in the Form 86. Nor was there any explanation given by the Applicant for the delay.

6.  On 18 March 2025, the Judge gave the Judgment refusing to extend time for the Applicant to apply for leave to apply for judicial review, and dismissed the leave application, for the following reasons:

“[13] …this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the [Applicant’s] case.

[14] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[15] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[17] The [Applicant] has failed to raise any valid ground to challenge the Board’s Decision.

[18] The [Applicant] therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In her Notice of Appeal filed on 27 March 2025, the Applicant states that she does not agree with the Judgment which she contends is unreasonable. She also asserts that she will provide the necessary information to prove that her problem is real. The Applicant has not given any particulars in support of these assertions.

8.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 24 June 2025. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  Under Order 53, Rule 4 of the Rules of High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

10.  There was a delay of 2 months by the Applicant in seeking leave to apply for judicial review in the present case. She has not offered any explanation for the delay. In any event, this Court will go on to consider the merits of the appeal.

11.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

12.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  The Applicant has failed to identify or show any error in the Judgment refusing to extend time for her to apply for leave to apply for judicial review, or grant leave to apply for judicial review. She has failed to raise any viable ground of appeal against the Order.

14.  The Applicant’s appeal has no merits, and is dismissed.