MARTINEZ ARLYN CASAGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 56/2025, [2025] HKCA 435

On Appeal From [2024] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 56 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2065 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Reudan Lai (“Judge”) dated 6 November 2024[1] refusing to grant leave for the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 24 May 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 June 2018 rejecting her non-refoulement claim.

2.  On 7 March 2025, the Judge refused to extend time for the applicant to appeal against his decision of 6 November 2024.

Background

3.  The applicant is a national of the Philippines born in 1983. She first entered Hong Kong to work as a domestic helper in 2009. She later met a man here, who was a permanent resident of Hong Kong, and they had a son together born on 22 February 2016. Their son is a Hong Kong permanent resident, but this is not a relevant factor to the applicant’s present application. The applicant last entered Hong Kong as a tourist on 30 June 2017 and was permitted to stay until 14 July 2017. She overstayed and surrendered to the Immigration Department on 31 July 2017. She lodged a non-refoulement claim by way of written signification on 7 November 2017 and submitted her non-refoulement claim form dated 4 June 2018 on the basis that she would be harmed or killed by her estranged husband (George Martinez) due to her relationship with the man in Hong Kong and resultant birth of her son, if she was refouled to the Philippines.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] By a notice of decision dated 27 June 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 21 March 2019, at which the applicant gave evidence and answered questions from the Board. In its decision dated 24 May 2019, the Board dismissed the appeal and affirmed the decision of the Director. The Board’s reasoning was summarised by the Judge at [17] to [21] of the Form CALL-1:

“ 17. After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.

18. In §§24-50 of the Board’s Decision, the Board set out in some details evidence given by the Applicant at the hearing before the Board. Having considered the totality of the evidence before the Board, the Board was not satisfied that the Applicant or Son had ever been threatened with harm or death in the Philippines for any reason, or that she faced a real chance of harm or death from Husband or his networks for any of the reasons claimed.

19. The Board noted from the Applicant’s own evidence that her relationship with Husband appeared to have ended long before their last contact in 2015. The Board did not believe that Husband suddenly became interested in her affairs again in around 2016. The Board asked the Applicant whether she fabricated the alleged threats from Husband to support her claim for protection and the Board considered her reply to be inadequate. The Board rejected her claim as untruthful and did not accept that Husband had made any threat towards the Applicant or Son in the past.

20. Because the Board held that the Applicant was not at risk from Husband, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon her return to the Philippines.

21. The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.”

The Judge’s decisions in the court below

6.  On 19 July 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form. In the supporting affirmation, the applicant stated that the Board disregarded her dangerous situation and annexed a copy of its decision.

7.  The Judge considered the application on the basis of the documents and the oral submissions made by the applicant at the oral hearing held on 17 October 2024. On 6 November 2024, the Judge issued his decision to refuse to grant leave to apply for judicial review. The reasons were set out in [22] to [31] of the Form CALL-1 as follows:

“ 22. In a judicial review, the court does not step into the shoes of the decision makers.

23. In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

‘ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the 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.’

24. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

25. The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated that: “I would like to reject and review the decision made by the Torture Claims Appeal Board on my case on 24/5/2019. They disregard my dangerous situation.” She then produced the Board’s Decision as exhibit to the Supporting Affidavit but no other supporting documents.

26. The Applicant attended the court hearing of 17 October 2024. She was unable to identify any error of law or procedural unfairness but said that the Board was unreasonable in refusing the Appeal. No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

27. Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

28. The Board was not satisfied that the Applicant faced a real chance of harm of any kind in the Philippines in the reasonably foreseeable future for any of the reasons she had claimed.

29. It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

30. In September 2024, the Applicant sent to the court some documents showing that she had filed a divorce petition against Husband at the Hong Kong Family Court and that Son was receiving medical treatments in Hong Kong. The facts that the Applicant is divorcing Husband in Hong Kong or Son has to attend medical treatments in Hong Kong do not assist the Applicant’s application for non-refoulement protection.

31. In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.”

8.  Long after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons on 10 January 2025 together with a supporting affirmation to apply for extension of time for filing the notice of appeal. In her affirmation, the applicant stated that she should be given a reasonable opportunity to present her case and annexed a copy of the Form CALL-1 and of the court order. On 7 March 2025, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in her intended appeal.

The renewed application before this Court

9.  By summons filed on 18 March 2025, the applicant made an application for leave to appeal out of time against the Judge’s order dated 6 November 2024.

10.  In the applicant’s supporting affirmation, she stated that the delay was due to the order and the form CALL-1 being lost in the post, so she did not receive those documents within 14 days. She also stated that she only obtained a copy of those documents from conducting a court search.

11.  The applicant lodged written submissions in which general legal principles of fairness and Wednesbury unreasonableness were stated. She further stated that the Board acted in a procedurally unfair manner without properly assessing her credibility, but she did not provide any elaboration or particulars of application to her own case.

12.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for about 7 weeks when she filed her initial summons on 10 January 2025. In her supporting affirmation, the applicant stated that the court documents were lost in the post and she only obtained copies from conducting a court search. The Judge did not accept the applicant’s further elaborations for her delay as explained in [7] to [8] of his decision. As we also find the applicant’s explanation for the delay to be unsatisfactory, the court will not extend time unless there are real prospects of success in the intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the applicant and assessed her evidence providing detailed reasons. The Board rejected the applicant’s non-refoulement claim because it considered that she was not a witness of truth, that she appeared to have lost contact with her estranged husband before 2015 and it was unlikely the estranged husband would suddenly be interested in her affairs in 2016, that she and her son had never been threatened with harm or death from her estranged husband, that there was no real risk of harm from the estranged husband upon refoulement, that she could access services that assist victims of violence, and that reasonable internal relocation to Manila would be a viable option. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application for leave to apply for judicial review.

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 18 March 2025 is accordingly dismissed.