SALAS IRIS JOY GONZALES v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 275/2019

[2023] HKCA 168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 275 OF 2019

(ON APPEAL FROM HCAL NO 446 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  The applicant is a national of the Philippines. She entered Hong Kong on 14 June 2011 as a visitor and subsequently overstayed. She surrendered to the Immigration Department on 10 September 2015 and lodged a non-refoulement claim. She claimed that she witnessed a murder and the murderer threatened to kill her if she would testify in respect of the murder. Her non-refoulement claim was dismissed by the Director of Immigration and her appeal was rejected by the Torture Claims Appeal Board (“the Board”).

2.  On 31 May 2019, Deputy High Court Judge Bruno Chan dismissed the applicant’s application for leave to bring judicial review against the decision of the Board concerning her non-refoulement claim[1].

3.  The applicant filed a Notice of Appeal against the said judgment out of time on 24 June 2019. On 28 June 2019, the Registrar of Civil Appeals indicated to the applicant that the Notice of Appeal was bound to be dismissed as she had not obtained leave to file the Notice of Appeal out of time and directed the applicant to lodge written submissions by 4 pm on 17 July 2019 if she should contend otherwise.

4.  The applicant only lodged written submissions in support of her appeal, without addressing the issue of lodging the appeal out of time without leave. On 19 July 2019, Lam Ag CJHC (as he then was) made an unless order requiring the applicant to lodge submissions on the application for extension of time on or before 1 August 2019, failing which the appeal shall be struck out and dismissed automatically on 2 August 2019 (“the Unless Order”). As the applicant did not lodge submissions as directed, her appeal was automatically dismissed on 2 August 2019 according to the Unless Order.

5.  The applicant filed a Notice of Motion on 22 July 2022 seeking leave to appeal to the Court of Final Appeal against the Unless Order.

Grounds of appeal

6.  The applicant stated the following as her grounds in the Notice of Motion:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] Information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  Her written submissions dated 3 August 2022 may be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the Board acted in a procedurally unfair manner without properly assessing her credibility.

Analysis and disposition

8.  If the applicant wishes to seek relief from the sanction for failure to comply with the Unless Order, the proper course for her is to make an application under Order 2 Rule 4 of the Rules of the High Court (Cap 4A) within 14 days of the failure. As the applicant has not taken out any application for relief from sanction but seeks leave to appeal against the Unless Order itself, and the grounds stated in the Notice of Motion and her written submissions only focus on the leave application, we would deal with her Notice of Motion on the basis that she does not wish to seek relief from sanction. That was the approach adopted in Nurkhasanah v Torture Claims Appeal Board and Anr [2021] HKCA 688 and Re Indayati [2022] HKCA 923.

9.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 July 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged her written submissions on 3 August 2022. Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

10.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  The applicant was late for about 11 months in filing the Notice of Motion and there is no good ground for the court to grant extension of time. Although she explained in her affidavit that she did not receive the judgment within the time stipulated for appeal, the judgment referred to in her affidavit should be the judgment made by the court below. As for the Unless Order, the court had sent it to the applicant’s address by post on 19 July 2019 and the mail was not returned to the court. The applicant has not stated when she actually received the Unless Order, nor did she provide any proof or particulars in respect of any postal delay. There is no justification for the substantial delay in filing the Notice of Motion.

12.  Furthermore, the applicant’s grounds and submissions are just bare assertions without particulars or evidence in support. In particular, she has not pointed out any error of the Court of Appeal in making the Unless Order. She also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

13.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 22 July 2022.