RE EMELITA ARISTA

CAMP 241/2023, [2025] HKCA 552

On an intended appeal from [2023] HKCFI 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 241 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 879/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 23 June 2023 refusing to extend time for the applicant to appeal against his decision dated 19 January 2023 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 31 July 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 9 August 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of the Philippines. She entered Hong Kong as a visitor in 2006, but she overstayed and was arrested by the police on 19 February 2017.  Thereafter, she lodged a non‑refoulement claim by way of a written signification dated 28 February 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by her nephew due to a land dispute.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board against the Director’s Decision.  After a hearing on 28 May 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing the appeal, the Board found material inconsistencies in the applicant’s evidence, on which her claim of risk of harm was based, and did not accept such claim.

The Judge’s decision                

6.  The applicant filed a Form 86 out of time on 1 April 2019, seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In her supporting affirmation, the applicant merely exhibited a copy of the Board’s Decision.

7.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review.  The Judge gave the following reasons in refusing leave at [9] to [17] of the CALL‑1 Form:

“9.  On 1 April 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she merely attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

10.  By then the Applicant was also seriously out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11.  As the last day of the three-month period for her to file her Form 86 fell on 31 October 2018, the Applicant was therefore some 5 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of 5 months must be considered as very substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any good reason for her serious delay.

13.  As for the merits, if any, of her intended application, as noted above the Applicant has failed to put forward any proper ground for her intended challenge, as such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of the risk of harm is primarily a matter for the Director and the Board, as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

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

16.  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.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

The present application for extension of time to appeal

8.  The applicant’s last known address at the time of the Judge’s decision was at 382-384 King’s Road, North Point (“the Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 19 January 2023, and were not returned undelivered.  

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 19 January 2023.

10.  The applicant thereafter took out a summons in the Court of First Instance on 6 April 2023 seeking extension of time to appeal, in which her address was also stated to be the Address.  In her Summons and supporting affidavit filed on the same date, she claimed that she did not receive the Judge’s decision in the post.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 23 June 2023[6].

12.  By a summons filed on 27 June 2023, the applicant renewed her application for an extension of time to appeal before this court.  In the summons, the applicant stated that she wished to appeal against the decision given by the Judge on 23 June 2023, being the Judge’s refusal to grant an extension of time for her to appeal against his decision dated 19 January 2023.  Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 23 June 2023, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 19 January 2023, by which leave for judicial review was refused.  

13.  In the summons and her supporting affidavit, the applicant merely contended that the court had disregarded her “dangerous situation”.

14.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  She is therefore deemed to have abandoned her right to rely on the same. 

15.  For completeness, we should mention that by a letter received by this court on 28 August 2023, the applicant informed the court that she would “like to request to close [her] case HCAL 879-19” because it is now safe for her to return to the Philippines.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  The inference to be drawn is that she has had notice of the Judge’s decision within the period which she was permitted to lodge an appeal.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has she explained when she had come to learn of the Judge’s decision.

18.  Given the applicant’s latest request for dismissal of the present application, an order for dismissal should be granted.  We have nonetheless proceeded to consider the merits of the intended appeal.

19.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

21.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

22.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 27 June 2023 is accordingly dismissed.