RE ARIAS RIOS YESSICA ANDREA

CAMP 533/2022, [2023] HKCA 1185

On Appeal From [2022] HKCFI 2493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 533 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2191 OF 2018)

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J U D G M E N T

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

1.  On 11 August 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. As 25 August 2022 fell within the Court Vacation, she should have filed an appeal on 1 September 2022 when the Vacation ended.

2.  The applicant did not lodge an appeal in time. She filed a summons in the Court of First Instance on 29 September 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 10 November 2022.

3.  On 12 December 2022, the applicant filed a summons in CAMP 533/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 12 December 2022, the applicant lodged her written submissions on 28 December 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Colombia. She entered Hong Kong as a visitor on 10 June 2016, travelled to and from Macau, and was permitted to stay until 23 July 2016. She did not depart and overstayed. She surrendered to the Immigration Department on 27 July 2016 and on 14 November 2016, she raised a non-refoulement claim alleging that if refouled, she would be harmed or killed allegedly by an abusive ex-boyfriend (“Daniel”). The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 2493).

7.  By a Notice of Decision dated 30 November 2017, the Director of Immigration (“the Director”) decided against the applicant’s claims. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 2 May 2018 and by its decision dated 3 August 2018, the Board dismissed the applicant’s appeal. For the reasons set out at [37] – [50], the Board found that the applicant’s evidence was vague, inconsistent and self-contradictory. First and foremost, she was unable to state the full name of her ex-boyfriend consistently, having stated two different middle names. Second, she gave vastly different time periods as to when she had a relationship with Daniel (with whom she alleged she had a son). Third, she demonstrated very limited knowledge of Daniel’s personal background and contradicted her own evidence as to whether Daniel belonged to FARC which is a political group or BACRIM, a criminal gang. The Board concluded that the applicant’s claim was entirely unreliable and that she had fabricated it. For the aforesaid reasons, the applicant’s non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 10 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s decision. In her supporting affirmation however, she stated that she wanted to review the Board’s decision as it was unfair and unreasonable. The Judge treated her application as one for leave to judicially review the Board’s decision as that superseded the Director’s decision.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [14] - [19] of the JR Decision:

“14. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. 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.”

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

17. The grounds in paragraph 13 are only her bare assertions without any evidence in support. There is no valid reason to challenge the Board’s Decision from the applicant

18. The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time. She filed a summons in the Court of First Instance on 29 September 2022 for an extension of time to appeal. That was dismissed by the Judge on 10 November 2022. Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

13.  As for (1), the applicant was late by almost 1 month between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance. Her delay was substantial.

14.  As for (2), the reasons for the delay, the applicant alleged in her supporting affirmation that she did not receive the JR Decision and she was only informed by the immigration officer about the JR Decision on 28 September 2022. The court file showed that the JR Decision was sent to her last reported address on the same day it was handed down. However, her summons filed in the CFI stated a different address. There was no notice of change of address filed with the court. The applicant should inform the court if she had changed her address and must shoulder the consequences of her failure to do so. Thus, we do not see any good reason for the delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision save for saying that she did not agree with the Judge’s decision and the Judge did not consider her application. She further claimed that she still faces severe problem in her home country and she will be killed by her enemy if refouled.

16.  In her written submissions, she advanced the following grounds:

(1)  The Judge was wrong in failing to apply the principle of irrationality in reviewing the Director’s and Board’s decisions.

(2)  The Judge failed to adhere to high standards of fairness and reviewed her case lightly.

(3)  The decisions had significant effect on the applicant’s substantive right not to be subject to torture and her right to non-refoulement protection.

(4)  The Judge was wrong in failing to apply the principle of procedural unfairness in reviewing the Director’s and the Board’s decisions and the Director and the Board were required to give reasons justifying their decisions.

(5)  The Judge did not give greater care to her case even though her problems are severe and she had submitted all the proofs to support her claim.

(6)  The Judge’s decision in refusing to extend time for her to appeal against the JR Decision was wrong.

(7)  The Board failed to give sufficient chance to the applicant to arrange evidence for her claim and appeal.

(8)  It is important to note that the applicant’s life and limb are in jeopardy and her rights not to be subjected to torture is involved, and high standards of fairness are required.

(9)  The applicant will face hardship upon her return to her home country but the Board had significantly relied on the source of news which is not officially recognized, or hearsay.

17.  These are new arguments which had not been raised before the Judge. In any event, it is clear that the Board had carefully reviewed the applicant’s case, it raised various questions to the applicant for her to establish the facts of her claim and had given her every opportunity to explain and clarify her case.[5] The Board had then set out its analysis in detail and the reason why the applicant’s evidence was rejected.[6] There is no merit in the applicant’s ground that the Board had failed to give reasons for its decision. The applicant’s case was rejected on the issue of credibility and the Board was not required to consider COI in reaching its decision.

18.  We also did not find any error of law or procedural unfairness or other irregularities in the Board’s decision and its findings are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application. We find nothing amiss in the JR Decision. The grounds against the Judge was vague and general and cannot stand.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 12 December 2022.