RE PURISIMA AIDA P

CACV 51/2022

[2022] HKCA 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 51 OF 2022

(ON APPEAL FROM HCAL 14 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge P Li (“the Deputy Judge”)  set out in the Form CALL-1 dated 13 January 2022, by which the Deputy Judge refused to grant extension of time and dismissed her application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 102).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 23 February 2017 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 19 February 2016 and 18 January 2017 (collectively referred as “the Director’s Decisions”)  rejecting the applicant’s non-refoulement claim.[1]

Background

3.  The applicant is a national of the Philippines.  She entered Hong Kong as a domestic helper on 15 December 1996 but her contract was terminated prematurely.  She then overstayed in Hong Kong until she surrendered to the Immigration Department on 16 August 2011.  She later lodged a torture claim, which was dismissed on 8 February 2012, and did not report to the Immigration Department until 24 June 2013.  She then raised a non-refoulement claim on 18 March 2014 on the basis that she and her son would be harmed or killed by her siblings if she returned to the Philippines.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [7] of the Leave Decision.

4.  By a Notice of Decision dated 19 February 2016, the Director rejected the applicant’s and her son’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk[2], namely BOR3 risk[3] and persecution risk[4].  Taking into account all relevant circumstances, the Director considered that their non-refoulement claim was unsubstantiated.  By a Notice of Further Decision dated 18 January 2017, the Director further dismissed their non-refoulement claim on the basis of BOR2 risk[5].

5.  The applicant appealed against the Director’s Decisions to the Board and attended the hearing before the Board on 6 February 2017.  The Board dismissed the applicant’s and her son’s appeal on 23 February 2017.  The Board found that the applicant’s delay of 14 years before making her torture claim had substantially affected her credibility.  The Board further noted that she was evasive during the hearing and found on the evidence that she was not telling the truth.  In any event, the Board further found on the evidence that the dispute between the applicant and her brothers was domestic in nature, and even assuming that the applicant was telling the truth, the injuries allegedly suffered by the applicant were not serious and did not attain a minimum level of severity.  Accordingly, the Board found that the level of risk of harm against the applicant and her son was low and state protection as well as internal relocation alternatives would be available to them.  Their appeal was thus dismissed.

The Leave Decision

6.  On 3 January 2019, the applicant filed a Form 86 and a supporting affidavit applying for leave to apply for judicial review of the Board’s Decision.  By this time, she was more than 1.5 years late in taking out her application.  The application for leave to apply for judicial review is only in relation to the Board’s decision concerning her non-refoulement claim.  She did not provide any ground of review in her Form 86.  In her supporting affidavit, she alleged that the Board failed to consider state due diligence and to assess the conditions in the Philippines and BOR3 risk, and further failed to take into account her psychological stress.  The applicant attended a hearing before the Deputy Judge on 1 November 2021 and a Tagalog interpreter was present to provide language assistance.

7.  By the Leave Decision, the Deputy Judge refused to extend time for the applicant to apply for leave to apply for judicial review and also refused to grant leave to the applicant to apply for judicial review.  The Deputy Judge held that:

“11. The applicant filed an application for leave for judicial review on 3/1/2019. She was more than 1½ years out of time. In her affidavit in support, she alleged that the adjudicator failed to consider State due diligence. The adjudicator failed to assess the conditions in the Philippines and BOR 3 risk. The adjudicator failed to take into account psychological stress.

12. In the hearing on 1/11/2021 before this court, the applicant indicated that she could not explain the delay of filing the leave application. She did not want to go home. She was concerned about her son. She was detained in CIC for 4 months in 2017.

13. The applicant was out of time in filing the leave application by more than 1½ years. The applicant should have applied for extension of time. She did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted.[6]

14. The adjudicator found that the applicant was not truthful. She did not comply with the law. He concluded that she fabricated the threat that her brothers would kill her.

15. As to her criticism in her affidavit, I have the following comments:

a. The adjudicator found that the threat from her brothers were fabrications. The issue of due diligence did not arise. In any event, she had not reported to the police. There was no evidence that the police would not take action had they learned of the conduct of ‘N’ and ‘E’.

b. The adjudicator had considered the COI listed in the decision of the Director and concluded that there was State protection.

c. Given that there was no injury to a minimum level of severity, the adjudicator was right to reject BOR 3 claim.

d. As to psychological stress, she had never raised this in her statements. In fact, she had relationship with another man in Hong Kong and had a son. There was nothing to show she was under stressed mentally.

16. In my view, the evidence above justified the conclusion of the adjudicator. The factual basis of her claim was not reliable. I agree with the adjudicator.

17. I am satisfied that there was no error of law nor was there any procedural irregularity. The decision of the TCAB is rational.

Conclusion

18. There is no explanation for the substantial delay.  The intended judicial review is of no merit.  In the circumstances, there is no good reason for extending the time for the leave application.  I also refuse leave for the intended judicial review in relation to the applicant.”

The Appeal

8.  On 26 January 2022, the applicant filed a Notice of Appeal against the Leave Decision.  The applicant complained that the Board and the Director failed to comply with their duty to make sufficient inquiries into the Country of Origin (“COI”)  conditions of her claim.  She further complained that the Board failed to take into account relevant considerations and took into account irrelevant considerations in that her life was in danger and she was threatened by her enemies and she was placed under severe mental distress.

9.  Pursuant to the directions of this Court dated 4 March 2022 and 30 March 2022, the applicant lodged her written submissions on 12 April 2022.  In her submissions, she merely repeated those matters as stated in her Notice of Appeal.  She further claimed that her son was born in Hong Kong and is currently still a minor.  As such, she had to take care of him and if she were to be refouled to the Philippines, she and her son would be in danger.

10.  We heard the appeal on 26 April 2022.  A Tagalog interpreter was present to provide language assistance.  At the hearing, the applicant confirmed that she had nothing further to add to her written materials.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

13.  Nowhere in her Notice of Appeal or written submissions did the applicant identify any error in the Leave Decision.  The matters raised in her written submissions were general and vague and only related to complaints directed at the Director and the Board, which had been properly addressed by the Deputy Judge in his reasons.  The applicant failed to identify anything to demonstrate why the Deputy Judge was wrong in his reasons.  As there is simply no viable ground of appeal, the appeal ought to be dismissed on this basis alone.

14.  In any event, the applicant’s general and bare assertions on her fear if refouled to her home country do not constitute valid grounds of appeal.  As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In the present case, we do not see any error of law or procedure in the proceedings before the Board in relation to the applicant’s non-refoulement claim.

15.  Further, the applicant’s assertion that she had to take care of her son does not assist her case.  Whilst her son is a permanent resident in Hong Kong, the applicant does not have any right to enter or remain in Hong Kong.  It is also well established that a family member (who has a right of permanent residence in Hong Kong)  of a person (who has no right to remain in Hong Kong)  cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at [92(7)] and Comilang Milagros Tecson v Director of Immigration (2019)  22 HKCFAR 59 at [57], [65] and [69].  In any event, the Board and the Director had given due consideration to the applicant’s non-refoulement claim and concluded that the risk of harm against her when refouled to the Philippines as low.

16.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.