RE ESQUILLO RIAH MAE ORDIZ

CAMP 77/2019

[2020] HKCA 46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 196/2018)

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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 Deputy High Court Judge Josiah Lam given on 20 November 2018 refusing 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 dated 19 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 9 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  She entered Hong Kong on 23 March 2012 to work as a foreign domestic helper.  Her contract was terminated prematurely, but she was allowed to stay on to pursue claims against her former employer.  However, she overstayed thereafter and surrendered to the authorities on 20 October 2015.  She lodged a non-refoulement claim on 1 June 2016. 

3.  The applicant’s claim was based on threats from a man known as Joel who is her ex-boyfriend and the father of her three children.  The details of the applicant’s claim have been summarised by the judge at [2] to [15] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 December 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 29 September 2017, the Board dismissed the appeal on 19 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [90] of the Board’s Decision, the Board found that the level of risk to the applicant if she is refouled is low.  The Board was also satisfied at [85] that state protection would be available for the applicant and at [88] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 8 February 2018 which contained no ground for seeking relief.

8.  In her affirmation in support of the leave application dated 8 February 2018, the applicant advanced the following grounds for judicial review which had been summarised by the judge at [30] – [32]:

“30. In her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

31. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

32. The Applicant mentioned she was not legally represented for appeal to the Board. She complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.”

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [40] to [57] of the CALL-1 Form:

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

41. 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’. Nevertheless, it is said in Re Islam Rafiqul: –

‘The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.’

42. It was wrong for the Applicant to say the Director had not screened her non-refoulement claim with respect to BOR2 risk. The Director’s decision dated 9 December 2016 was on all the four applicable grounds including BOR2 risk.

43. The Applicant mentioned she was not legally represented for appeal to the Board. She had been represented by the Duty Lawyer Service up to the Director's decision dated 9 December 2016.

44. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

45. The Applicant raised her language problem. In the current application, a lawyer helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated her problem of getting interpretation/translation assistance and handling English documents.

46. The Applicant complained she received the appeal bundle only a few days before the Board hearing.

47. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

48. The Director stated in his letter dated 5 July 2018 that the appeal bundle was served on the Applicant on 22 September 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.

49. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

50. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

51. The Applicant said she answered all the questions honestly in the Board hearing. That would mean she knew well what was asked and how to answer. She was not confused.

52. The Adjudicator found reasonable state protection was available to the Applicant in any event. Apparently, he was satisfied there was no state acquiescence of any kind.

53. The Adjudicator did not accept Joel would pose any real risk to the Applicant. Therefore, it was not necessary for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in the Philippines a consistent pattern of gross, flagrant or mass violations of human rights.

54. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

55. There was also no evidence the Adjudicator applied the wrong test of proof.

56. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in 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 Adjudicator was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

57. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.”

10.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 20 November 2018.

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal. She failed to do so.  By a summons dated 14 January 2019, the applicant sought leave to appeal out of time.  On 26 March 2019, DHCJ Bruno Chan dismissed her application.

12.  By a summons dated 6 May 2019, the applicant sought leave to appeal out of time against the decision of DHCJ Bruno Chan dated 26 March 2019.  This was not the correct application to make as she should have renewed her application for leave to appeal out of time against the decision of DHCJ Josiah Lam.  In her affirmation in support of the same date, the applicant submitted that:

(1)  the judge (DHCJ Bruno Chan) was wrong in law in holding that there was no state acquiescence or involvement;

(2)  the judge failed to provide detailed reason in support of his decision.

13.  In her skeleton submissions dated 10 June 2019, the applicant submitted that:

(1)  the Board erred in failing to scrutinize the Director’s decision according to the high standard of fairness; and

(2)  The decision-maker failed to follow the minimum standard of procedural fairness in the decision-making process and cited a number of well known cases in support of these broad propositions, without linking them in any relevant way to her own case.

Discussion

14.  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.

15.  The applicant did not provide any explanation for the delay in bringing the intended appeal, or for her delay in making a renewed application before us.  Moreover, as we have noted she has wrongly sought leave to appeal against the decision of DHCJ Bruno Chan.  We shall nonetheless go on to consider the merits of the intended appeal, and will treat it as a renewed application for leave to appeal against the decision of DHCJ Josiah Lam.  

16.  For the first ground in the affirmation dated 6 May 2019, this court has held that an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge is not required himself to come to a view on state acquiescence or involvement, as the primary decision maker is the Board. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  In any cases, the judge (DHCJ Josiah Lam) did not himself deal with the question of state acquiescence, and this ground is therefore misconceived. 

17.  The applicant did not give any particulars for the second ground of appeal in her affirmation.  Having considered the reasoning given by the judge at [40] – [57] of CALL-1 Form, we are of the view that the judge (DHCJ Lam) had carefully examined each of the ground for judicial review and gave sufficient reasons in rejecting them.  This ground is also without merit.

18.  In her skeleton, the applicant only referred to a number of cases without applying the principles derived from them to the present case.  She also failed to give sufficient particulars.  These grounds are not viable grounds of appeal.

19.  We therefore do not see any prospect of success in the intended appeal, and will not grant extension of time for a hopeless appeal.  The summons of 6 May 2019 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.