RE ALCANTARA LOLITA SERRATO

CAMP 110/2018

[2018] HKCA 823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 110 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 723 of 2017)

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JUDGMENT

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

1.  By summons filed on 12 July 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 25 April 2018 refusing her leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 29 August 2017 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 16 February 2016 and 7 July 2017 rejecting her non-refoulement claim.

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap4. A, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Filipino national.  She came to Hong Kong on 19 November 2005 and was given permission to remain and work as a foreign domestic helper until 19 November 2007 or two weeks after termination of employment whichever was earlier.  After her employment was terminated in March 2007, she was given permission to remain as a visitor until 30 March 2007, which was further extended to 2 June 2007.  She has since then overstayed. On 11 June 2012, she surrendered to the Immigration Department. 

4.  The applicant lodged a torture claim[1] to the Director on 2 August 2012, which was rejected on 22 May 2013. 

5.  On 17 June 2013, the applicant raised a non-refoulement protection claim based on her fear that she would be killed by her husband due to two extra-marital relationships developed when she worked in Singapore and in Hong Kong.  The details of the background of the applicant and her account of events were set out in the decisions of the Director and the Board, and summarized by the Judge at [3] and [10] of Form CALL-1 dated 25 April 2018, [2018] HKCFI 887. 

6.  The Director assessed the applicant’s non-refoulement claim on all applicable grounds except the ground of torture risk[2], which had previously been determined by the Director (see [4] above).  By Notice of Decision dated 16 February 2016, the Director rejected the applicant’s claim having considered the grounds of BOR 3 risk[3] and persecution risk[4].

7.  By letter of 14 June 2017, the Director invited the applicant to submit additional information relevant to an assessment of her non-refoulement claim on the BOR 2 risk ground[5]. Not having received a reply from the applicant, the Director proceeded to make an assessment on the basis of the materials previously submitted by the applicant in connection with her non-refoulement claim.  By letter of 7 July 2017, the Director determined against the applicant.

8.  The applicant appealed the Director’s decisions to the Board.  Guided by the principles set out in ST v Betty Kwan & Ors [2014] 4 HKLRD 277, the Board considered that an oral hearing was not required and determined the appeal by way of paper review.  

9.  By a decision dated 29 August 2017, the Board dismissed the applicant’s appeal.  For the reasons given in [44] to [66] of its decision, the Board found that the factual basis of the applicant’s claim, accepted as it stood and considered in the light of the Country of Origin Information, was insufficient to make out a case for non-refoulement protection on any of the applicable grounds.    

10.  On 6 October 2017, the applicant filed her Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  The applicant did not request an oral hearing and the Judge considered her application on the materials available to him. 

11.  The Form 86 did not set out any ground for the relief sought. In the affirmation filed in support of the application, the applicant also did not give any grounds for her application, other than stating that she could not return to the Philippines because her husband had threatened to kill her. 

12.  The Judge refused to grant leave to apply for judicial review and gave his reasons at [28] to [34] of the Form CALL-1 as follows:   

“28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

30. The Applicant’s case was simple and clear; there was no ambiguity for the Adjudicator to clarify. He accepted the facts claimed by the Applicant. There was really no need for him to hold any hearing. Thus, the Adjudicator was right to deal with the Applicant’s appeal on consideration of documents only.

31. Although accepting the facts as submitted by the Applicant, the Adjudicator found there was no real risk against the Applicant to justify non-refoulement protection.

32. The Adjudicator was acquainted with the law and the facts of the Applicant's case. He had proper basis for his findings and conclusions, which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaint against the Board's decision.

33. The Director is only an interested party in the current application for judicial review. However, for the sake of complete discussion, I would say that even if the Applicant would like to seek judicial review against the Director, she would have no arguable grounds to complain. In fact, the Director's decision dated 16 February 2016 was more than three months old when the Applicant made the current application on 6 October 2017. It was time-barred for judicial review in the absence of any good reason to justify delay. The Director's further decision dated 7 July 2017 was still within the limitation period. In any event, the Director’s decision and further decision were not Wednesbury unreasonable. The Director made no errors of law and there was no procedural unfairness.

Conclusion

34.  In my judgement, the Director and the Board had each engaged in proper joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The reports of the Director and the Board respectively showed they were acquainted with the facts and the law. They were entitled to render those findings, conclusions and decisions as they did and those findings/conclusions/decisions were all reasonable. The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

13.  The 14-day period[6] for the applicant to appeal against the Judge’s decision expired on 9 May 2018.  On 12 July 2018, the applicant took out the present summons to apply for leave to appeal out of time.

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (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: see: 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). 

15.  The applicant was late by 2 months.  It is not insubstantial. She explained that she never received the Form CALL-1 and she only learnt from her friend of the refusal of her Form 86 application.  Her explanation was unsatisfactory for she had not explained how it came about that she did not receive the Judge’s decision and order when they were sent to the address provided by her.  Be that as it is, the more crucial consideration in determining whether the Court should exercise its discretion to grant an extension of time for appeal is the prospect of success of the intended appeal: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226.  And it is to this that we now turn.   

16.  The applicant did not provide the grounds of the intended appeal.  In her supporting affirmation filed on 12 July 2018, she said she would file a Notice of Appeal if the Court would grant her extension of time to lodge an appeal.  This is clearly wrong.  In order to persuade the court to extend the time for appeal, the applicant must demonstrate she has an arguable appeal with reasonable prospect of success.  She stated in the affirmation that there was a chance that her appeal against the Board’s decision would succeed, but gave no particulars of the basis of her assertion. This is plainly insufficient.   

17.  The applicant had lodged a set of written submission dated 1 August 2018, in which she only explained the delay.  No argument on the intended appeal was set out.  

18.  An appeal is to review the correctness of the Judge’s decision and not to re-assess the applicant’s non-refoulement claim or to review the decision of the Board.  Since the applicant has not identified any error in the Judge’s decision and reasons, there is no basis upon which the Court of Appeal may disturb the Judge’s decision.   

19.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

20.  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 our determination to be reconsidered at an oral hearing.