RE VILLAROSA RHEA LIMBAGA

HCAL 2834/2018

[2021] HKCFI 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2834 OF 2018

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DECISION

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Introduction

1.  This is the applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 20 September 2018 (the “Decision”) refusing her late filing of notice of appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 January 2018 refusing her application for non-refoulement protection (the “Notice”).

2.  The applicant is a Philippine national.  She previously worked in Hong Kong as a foreign domestic helper since 2011.  She last entered Hong Kong on 5 June 2016 and was granted permission to stay until 9 October 2017.  Her contract of employment was prematurely terminated on 12 July 2016.  She was permitted to stay as a visitor until 26 July 2016 but over-stayed thereafter.  She surrendered to the Immigration Department on 13 October 2016.  On 20 February 2017, she raised a torture claim by a written signification, claiming she will be harmed or killed by her boyfriend if returned to the Philippines.

3.  In due course, her non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4] grounds.  By a Notice dated 15 January 2018, the Director rejected her claims.  In the Notice, she was advised that if she is aggrieved by the decision, she may appeal to the Board within 14 days of the Notice.  A copy of the notice of appeal and address of the Board was attached to the Notice.  Allowing for two days for the Notice to reach the applicant by normal course of mail, the time for appeal expired on 1 February 2018.  The notice of appeal reached the secretariat of the Board on 5 February 2018.  It was four days late.

4.  The Board refused the late filing and gave its reasons in the Decision.  The applicant now seeks leave to review that Decision.

5.  By a letter dated 24 March 2021, this Court invited the applicant to make submission in relation to her application.  She did not respond.  Her application was first scheduled to be heard on 27 April 2021.  She did not appear.  Attempts were made to contact her by telephone. She did not answer.  Two further hearings were scheduled on 13 May and 1 June 2021 for her.  She did not turn up.  Attempts were made to contact her by telephone on both occasions.  It was discovered that her telephone service had been suspended.

6.  In the notice of hearing sent to the applicant in connection with the three hearings, she had been advised that if she did not appear she would be deemed to have waived her right to make oral submissions at the hearing and the court will deal with her application according to the paper already placed before the court.  Accordingly, her application for leave was considered on paper without a hearing.

The law – late filing of notice of appeal

7.  The appellate regime relating to non-refoulement claims under the Immigration Ordinance permits a claimant to appeal to the Board against the decision of the Director refusing his claim within 14 days of the decision of the Director: see section 37ZS.  The section sets out the procedures for dealing with a notice of appeal filed after the expiry of the 14-day period.  This section provides as follows:

“37ZT. Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

8.  It is obligatory for the claimant to furnish a statement of reasons for the late filing and to provide documentary evidence wherever available.  It is mandatory for the Board to decide as a preliminary decision without a hearing whether to allow the late filing.  The Board shall only make its decision on the basis of the statement of reasons and accompanying documents furnished by the claimant and the relevant matters of fact within the Board’s own knowledge.  The test is whether there are special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  To answer that question, the court adopts the three stage approach laid down in The Secretary of State for the Home Department v Begum[5]:

“As noted by Richards LJ in the latter case a judge must approach an application for relief from sanction in three stages as follows:

i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.  As listed in para. [35] of the judgment in Denton:…’”

The Board has to consider (i) seriousness of the breach; (ii) reasons for the breach; and (iii) an evaluation whether in all the circumstances of the case known to the Board that it would be unjust not to grant the extension of time.  It is certainly unjust not to grant extension of time to enable a meritorious appeal to proceed.  The converse is also true.  It is not unjust to refuse an extension so as to allow an unmeritorious appeal to proceed.  These procedures are also set out in the Petition Guide.

The law – Judicial review

9.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claims; risk of harm; availability of state protection and viability of internal relocation; and in the case of the filing of a notice of appeal whether it was late, whether there was a valid explanation for the late filing and whether there were special circumstances which would make it unjust not to allow the late filing.  The court will scrutinise the Board’s Decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].  

10.  The applicant did not state her grounds of her application in her notice of application for leave to apply for judicial review (Form 86).  In her supporting affirmation, she stated that she is the applicant and annexed only the first page of the Decision; but did not state her grounds for the application.  She did not respond to the court’s invitation for submission. She did not attend the hearing scheduled for her on three occasions.  Given the absence of specific grounds for her application, the court can only focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant when considering her application for leave.

The applicant’s explanation for the late filing

11.  The Board followed the procedures set out under section 37ZS(1) and the Petition Guide to decide as a preliminary decision without a hearing whether to allow the late filing on the basis of the statement of reasons and accompanying the notice of appeal filed by the applicant and the relevant matters of fact within the Board’s own knowledge. 

12.  The reason for the late filing given by the applicant as stated in Section 5 of the notice of appeal is as follows:

“I was late for passing my letter because the attorney office no interpreter at the we meet and we seat again the date January 24 2018.”

Though not entirely comprehensible, it appears that the applicant attended the secretariat on an occasion before 24 January 2018, ie a good number of days before the 14-day period expired.  She found no interpreter at the secretariat and left.  She returned on 24 January 2018, still before the deadline for filing her notice of appeal.  But she gave no information about what happened on that occasion.  The Board noted that the applicant appeared to be in contact with an attorney and was therefore in a position to obtain advice or assistance in filing her appeal regardless of whether she had the assistance of an interpreter.  From the limited information she provided, the Board considered the applicant had failed to give adequate reasons for her delay in filing her appeal or set out any special circumstances to explain her failure within time.

13.  The Board could not be criticised for its conclusion.  The Board may only consider whether to allow the late filing on the basis of the statement of reasons stated in the notice of appeal filed by the applicant and the relevant matters of fact within the Board’s own knowledge.  Given the scanty information provided by the applicant, it was not known what happened on the applicant’s two visits.  It was not known whether she arrived during office hours, whether there was an interpreter or staff present in the secretariat, what enquiries she had taken in connection with filing her notice of appeal, and what steps she had taken for that purpose. One would expect some credible and reasonable explanation would have been given explaining what happened on the two visits and why the applicant could not have lodged her notice of appeal and why she managed to do so on 5 February 2018. But there was none from the applicant.

14.  The blame the applicant put on the absence of an interpreter at the secretariat is just a lame excuse. There are non-refoulement claimants from at least five different countries speaking over ten different languages.  The secretariat does not and certainly cannot be expected to have interpreters for ten different languages standing by waiting for intending appellants.  The secretariat has a reception area and counter manned by staff to receive notices of appeal which is the sole function of the secretariat.

15.  In the light of the above, the applicant’s evidence about her two visits is inherently improbable. On her evidence, she was able to access the reception area of the secretariat, but found no interpreter.  It is incredible that having accessed the reception area, she found no staff on duty who would receive her notice of appeal.  It is incredible with her ability to communicate in English during her five years’ employment as a foreign domestic helper she could not have adequately expressed her wish to lodge the notice of appeal to the staff on duty.  It is also incredible that she left on both occasions without lodging her notice of appeal.  It is unexplained why she managed to successfully lodge it on 5 February 2018.  Her explanation is unexplained and inherently improbable.  The absence of particulars in her explanation reflects that the account given was not the whole truth and not credible.  The inference is that her explanation was fabricated and she had no valid explanation for the delay.

No special circumstances

16.  The Board seemed to have jumped from the absence of a valid explanation to the conclusion that there were no special circumstances which would make it unjust not to allow the late filing of the notice of appeal without undergoing the third stage of the Begum analysis.  Two important factors to be considered at this stage of the analysis are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.  Hong Kong has been flooded with non-refoulement applications.  Regrettably to say, many are unmeritorious, being threats arising from personal disputes than torture, cruelty, inhuman and degrading treatment, and punishment perceived under the relevant conventions.  Unmeritorious claimants are burdening Hong Kong and the international community committed to give protection to genuine asylum seekers. Their applications are overloading our Unified Screening Mechanism in processing the claims and our judicial system in reviewing the decisions of the Board, much to the prejudice of genuine asylum seekers.  There is a need to ensure that these applications are conducted efficiently and at proportionate cost.  In this regard, compliance with rules, practice directions and court orders is of paramount importance.  Subject to the overriding interest of justice, these rules, practice directions and court orders must be obeyed.  This interest of justice would require a consideration of the merit of the application, ie the intended appeal against the decision of the Director in the Notice.   

17.  On the applicant’s own case, her fear and risk arose out of a personal monetary dispute between her and her boyfriend; the threat was a verbal one and she never suffered any physical or actual harm; her boyfriend never made any attempt to find her mother to hurt her or trouble her while the applicant is in Hong Kong.  For these reasons, the immigration officer considered that her boyfriend never had the intention to really harm or kill her; that the ill-treatment inflicted upon her had not attained a minimum level of severity such that non-refoulement protection is warranted; and that her risk of ill-treatment is low.  On these findings, there is no factual basis to support the applicant’s claims for non-refoulement protection on any of the four applicable grounds.

18.  More specifically, the applicant’s boyfriend is indisputably not a public official or person acting with state authority or acquiescence of the state.  This disqualifies her from claiming on the basis of Torture Risk ground as the ill-treatment could not be for a purpose or reason within the definition of “torture” under section 37U(1) of the Immigration Ordinance.  This disqualifies her from claiming on the basis of Persecution Risk ground because the fear or ill-treatment, even if real, are not related to one of the convention reasons, ie race, religion, nationality, membership of a particular social group or political opinion.  Furthermore, on the basis of the Country of Origin Information, the immigration officer was satisfied that adequate state protection and internal relocation are available to prevent or avoid the harm.  This disqualifies her from claiming under any of the four applicable grounds.

19.  In her notice of appeal, the applicant repeated her allegation that her boyfriend is still using drugs; that she was pregnant; and her fear of harm from her boyfriend.  She advanced no specific grounds of appeal or attack on the finding of the Director.  Her appeal is a challenge of the finding of fact of the Director which is solely within the province of the Director.  There is no merit in the intended appeal. 

Disposition

20.  Here, the delay is not serious, but the reason given by the applicant is fabricated and invalid.  The Board followed the procedure set out in section 37ZT and the Petition Guide to the letter.  Even though the Board did not mention Begum, it effectively adopted the three-stage approach in that case.  Given the absence of information from the applicant and other relevant matters of fact known to the Board, the Board could only draw as the only reasonable conclusion that there were no special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  The Board committed no error of law.  The Board concluded that there were no special circumstances which would make it unjust not to allow the late filing.  The conclusion is a finding of fact which is both justified and exclusively within the province of the Board as the tribunal of fact to make.  Having rigorously examined the Board’s Decision and the papers, the court was satisfied that the Decision met the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  There was no procedural unfairness.  The Board adhered to a very high standard of fairness. The applicant’s intended judicial review has no realistic prospect of success. Accordingly, leave to apply for judicial review was refused.