RE GOMEZ MENDOZA YESICA

CAMP 184/2023, [2024] HKCA 936

On appeal from [2022] HKCFI 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 184 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2190 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  dated 23 February 2022[1] dismissing her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and also lodged a written submission to support her application. 

3.  Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Colombo, now aged 31.  She entered Hong Kong on 24 September 2013 and was given permission to remain for three months as a visitor.  She overstayed and was arrested by the police on 19 October 2014.  She later raised a non-refoulement claim based on fear of being harmed or killed by a guerrilla group called the Revolutionary Armed Forces of Colombia (“FARC”)  and also by some drug dealers who demanded her to disclose the whereabouts of her partner (“Jorge”)  as they accused him of taking their drugs.  

5.  The details of her claim were set out in [7] of the decision of the Director of Immigration (“the Director”)  and at [11] of the decision of the Torture Claims Appeal Board (“Board”).  In gist, the applicant claims that the FARC had set fire to her house and other houses in the neighbourhood, which caused the death of her then partner and their daughter, and they had also threatened her to vacate her house and sign documents giving up the house.  With the assistance of Jorge, who is a Hong Kong resident, the applicant came to Hong Kong.  They met in Colombo.  While in Hong Kong, they lived together and have a son.  In August 2016, Jorge went from Colombo to Brazil where he was arrested and later sentenced to imprisonment for trafficking in cocaine.  Since then, the drug dealers who supplied the drugs to Jorge has been threatening the applicant and demanding her to disclose the whereabouts of Jorge as they accused him of running away with their drugs.  

6.  By a decision dated 20 July 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds. 

7.  The applicant appealed the Director’s decision to the Board.  An oral hearing was held on 13 June 2018.  By its decision given on 24 August 2018, the Board dismissed her appeal.  In summary, for the reasons set out in [31] to [88] of its decision, the Board found the applicant’s claim about being threatened by the FARC untruthful.  The Board did not accept that she or her family members had been threatened or harmed by the FARC, or that her former partner and their daughter died in a fire caused by the FARC.  Further, for the reasons set out in [89] to [113], the Board rejected the entirety of the applicant’s claim relating to Jorge. The Board found that the applicant did not face a real risk of any harm from the FARC or from any drug dealers.  The Board concluded that the applicant failed to establish any entitlement to non-refoulement protection under the applicable grounds.  

8.  On 10 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant did not provide any substantive grounds to support the reliefs sought.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 23 February 2022, the Judge refused to give leave for applying for judicial review for the reasons set out at [15] to [20] as follows:

“15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  … Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18. I note that the Board had turned down her request for an adjournment of the hearing for her to obtain legal representation and to obtain the death certificate of her daughter in Colombia, which may be infringing the principle of procedural fairness for the applicant. I have taken into account the factors below to determine whether this will give the applicant a realistic prospect of success in her intended judicial review of the Board’s Decision:

(1)  the applicant has not raised this ground in her affirmation in support of this application;

(2)  there had been plenty of time for the applicant to apply for free legal representation, which she did not do;

(3)  there was no evidence to show that her sister had the means to support her for the legal expense, nor was there any evidence that her sister was unable to afford until the time near the hearing and the reasons therefor;

(4)  the hearing would be delayed for a considerable period of time if it were adjourned;

(5)  the Board found against her not because of legal issues, but only on the factual evidence, being the inconsistencies between her evidence before the immigration officer and before the adjudicator, and legal representation would not advance her case on the facts alone;

(6)  as to obtaining the death certificate, the Board considered that it had been over a year since the applicant first expressed that she wished to obtain documents relating to her daughter and she was uncertain whether the documents would be available even if the hearing was adjourned;

(7)  in the Director’s Decision, the Director found that even if the applicant’s story were true, the alleged threats and perceived risk of ill-treatment by the members of the FARC/drug dealers were only due to personal or private disputes and the government of Colombia was not involved [§29 of the Director’s Decision] and therefore state protection was available to her;

(8)  the Director also found that even if the applicant’s story were true, it was localized in her home areas and she would be safe to relocate to somewhere else such as Bogota [§§41-43 of the Director’s Decision]; and

(9)  there was no dispute or evidence to contradict the Director’s Decision on the issue of state protection and internal relocation from the applicant.

19. I also note that the Board’s reference to the principle of the applicant being not entitled to free legal advice at all stages of the proceedings may not be relevant to the case before the Board. The applicant was asking for an adjournment for obtaining legal advice at her own expense. She was not complaining of not having free legal representation or advice. But I find that this issue will not do injustice to the applicant’s case.

20.  For the reasons above, I find that the applicant does not have any realistic prospect of success in her proposed judicial review.”

9.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 9 March 2022.

10.  By a summons filed on 21 March 2023, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 2 May 2023[6] refused the application. 

11.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

12.  We note from the court file that the Form CALL-1 was resent to the applicant on 22 March 2022, after her updated address was provided by the Director.  By the time the applicant applied to the Judge for a time extension, she was nearly a year late.  This is a serious delay.  In the supporting affidavits filed in the court below and in this application, the applicant explained that she could not lodge an appeal because she did not have the original Form 8, which is the recognizance form issued by the Director.  She further stated in the written submissions that after her release from prison on 29 January 2022, she did not have a proper address and did not receive the Judge’s decision.  Meanwhile, she lost her Form 8 and it was not until 1 March 2023 that she was issued with a new Form 8.  In Having regard to the applicant’s explanations, we would focus on the merits of the intended appeal, which is the most important consideration.

13.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

14.  The applicant did not set out any grounds of appeal in her summons or affidavit.  Her written submissions made the following points:  

(1)  Her problem in her country is genuine and her claim is based on a true story.  The FARC is still looking for her and threatening her family members.  If she returns to her country, she will be in danger.  

(2)  The Board and the Director failed to obtain proper information about Colombo.  FARC is a big armed group with many spies around the country.  It can easily track her down and harm her.  The police or the state authorities cannot protect her as they cannot protect themselves against this insurgent group.

(3)  The Board and the Director failed to take into account relevant considerations and had taken into account irrelevant considerations.

(4)  She has a son in Hong Kong, who is a Hong Kong resident.  Recently, she was married to a Hong Kong resident and she will be applying for a dependant visa.   

15.  For the reasons discussed below, we are of the view that the matters put forward by the applicant in her written submissions do not constitute viable grounds of appeal:

(1)  Given that the applicant had appealed the Director’s decision to the Board and the intended judicial review is against the Board’s decision, the focus should be on the decision made by the Board, and not the Director’s decision.

(2)  The Board had examined the applicant’s claim and evidence in detail.  It had also provided full reasons for rejecting the factual assertions underlying her claim.  Assessment of credibility and risk of harm is a matter for the Board, who is the primary decision maker.  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that they are erroneous in law or irrational or there is procedural irregularity or unfairness. 

(3)  The Form 86 and the supporting affirmation did not set out any grounds for seeking relief or make any challenge to the reasons and findings of the Board.  This being the case, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.

(4)  In respect of the complaints made in the written submission in support of the present application, they are unarguable. On  the complaint about failure to look into the country information, it is clear from the Board’s decision that it had consulted country information of Colombo, including information about the FARC: see [34] of the Board’s decision.  As to the complaint that relevant considerations had not been taken into account whereas irrelevant matters were being considered, it is a vague and general assertion.  No particulars have been given as to what are the relevant matters that the Board had failed to consider or what are the irrelevant matters taken into account by the Board.  

(5)  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  There is no proper basis for this court to disturb the Board’s assessment and findings on the risk of harm and its conclusion that the applicant’s entitlement to non-refoulement protection was not made out under the applicable grounds.

(6)  In light of the Board’s rejection of the applicant’s case and evidence and the absence of any proper basis for the court to interfere with the Board’s decision, the applicant’s claim that she will be harmed or in danger in her country cannot be made out.

(7)  The fact that the applicant may apply or is applying for a dependant visa is not relevant to the intended appeal, and thus has no bearing on the determination of the present application.  

16.  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 to appeal.  Accordingly, we dismiss the summons filed on 8 May 2023.