RE SALGADO LEONIDA TAMAYO

CAMP 212/2023, [2024] HKCA 272

On Appeal From [2022] HKCFI 2370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 212 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 133 OF 2019)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.  On 5 June 2023, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 2 August 2022 ([2022] HKCFI 2370) (“the Leave Decision”) refusing leave to apply for judicial review.  On 4 May 2023, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2023] HKCFI 1166) (“the EOT Decision”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 13 November 2018, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 26 April 2018 rejecting the applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.  The applicant is a national of the Philippines.  She last arrived in Hong Kong on 27 May 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 December 2012.  Her employment was prematurely terminated on 11 January 2011.  She did not depart and overstayed in Hong Kong since 26 January 2011 and was arrested by police on 21 June 2011.  On 6 July 2011, she raised a torture claim which was rejected on 8 May 2012.  On 21 April 2016, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her mother’s former boyfriend who had sexually abused and raped her in the past.  Details of the applicant’s claim have been summarised by the Judge at [1] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 26 April 2018 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than risk of torture[1], namely, BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  On 13 November 2018, 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 Leave Decision:

“9.  In its decision the Board found serious inconsistencies discrepancies and contradictions in the Applicant’s evidence of being raped and threatened by her step-father that it doubted the credibility of her claim of fear of harm from him that caused her to leave the country for Hong Kong, and that even if she had in fact been raped and abused by her mother’s boyfriend but there is simply no evidence even from the Applicant on her own case of any threats from him and whom her mother has subsequently left that it concluded that there is not a genuine or substantial risk of the Applicant being subjected to any harm or ill-treatment from her mother’s former boyfriend or any person upon her return to the Philippines that her claim for non-refoulement protection failed on all applicable grounds.”

7.  On 14 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in the Form 86.  In her supporting affirmation, she only stated it would be safe for her to stay in Hong Kong.

8.  On 26 May 2022, the applicant attended an oral hearing in person before the Judge.  A Tagalog interpreter was present to provide language assistance.

THE JUDGE’S DECISION

9.  On 2 August 2022, the Judge refused to grant the applicant leave to apply for judicial review. His reasons were stated at [12] ‑ [15] of the Leave Decision:

“12. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 ‑ 63 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, a decision also confirmed by the Board, I do not find any reasonably arguable basis to challenge the findings of the Board.

13. The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered 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.

15.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.”

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.

11.  On 21 December 2022, the applicant applied by summons for an extension of time to appeal against the Leave Decision.  By that time, she was over three months late with her intended appeal.[5]

12.  On 4 May 2023, the Judge refused the applicant’s application, holding that the applicant failed to provide good reason for her very substantial and inordinate delay.  The Judge also held that she had not been able to raise any valid ground to challenge the Board’s Decision or show any realistic prospect of success in her intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation taken out on 5 June 2023 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision.  In her summons and supporting affirmation, the applicant only claimed that her life would still be in danger in her home country if refouled.

14.  Pursuant to the directions of the Registrar of Civil Appeals dated 5 June 2023 and the court’s directions dated 26 June 2023, the applicant lodged her written submissions on 7 July 2023.  In those submissions, the applicant cited various case authorities and legal propositions in relation to the high standard of fairness but failed to point out how they were relevant to her case.

DISCUSSION

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

17.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

18.  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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.  At the outset, the applicant’s delay of almost three months is substantial and inordinate.

20.  More importantly, there is also no merit in the applicant’s intended appeal.  Her complaints are general allegations without particulars.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

21.  The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.

22.  There is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 5 June 2023 is dismissed.