RE CLAVERO JOY CABALLERO

CAMP 235/2019

[2020] HKCA 467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 235 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 197 OF 2018)

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J U D G M E N T

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

Introduction

1.  By a summons filed on 25 September 2019, the applicant renewed her application for leave to appeal out of time against the decision given by Deputy High Court Judge Josiah Lam (“DHCJ Lam”) on 4 April 2019 refusing to grant leave to apply for judicial review.  The applicant’s previous application for an extension of time to appeal was refused by the Deputy High Court Judge Bruno Chan (“DHCJ Chan”) on 21 August 2019. 

2.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 25 April 2017, in which the Board confirmed the decisions made by the Director of Immigration (“the Director”) dated 7 April 2016 and 12 January 2017.  By the Decision given by DHCJ Lam dated 4 April 2019 (“the Decision”), the applicant’s application for leave for judicial review the Board’s decision was dismissed.

3.  Pursuant to the directions of the Registrar of Civil Appeals given on 18 October 2019, the applicant lodged her written submissions on 4 November 2019. 

4.  Having considered the summons, the supporting affidavit and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of the Philippines. She came to Hong Kong on 21 March 2013 and was permitted to stay as a visitor until 4 April 2013.  However, she did not depart and overstayed since 5 April 2013.  She surrendered to the Immigration Department on 24 June 2015.  On 10 December 2015, she lodged her non-refoulement claim by way of a written representation on the basis that if she were to return to the Philippines, she would be harmed or even killed by her abusive boyfriend Eduardo Alvarez (“Eduardo”), who is a farmer and a member of the New People’s Army (“NPA”).

6.  By a Notice of Decision dated 7 April 2016, the Director decided against the applicant’s claim on BOR 3 risk, the persecution risk and the torture risk.  By a Notice of Further Decision dated 12 January 2017, the Director rejected the applicant’s claim on BOR 2 risk.

7.  The applicant appealed to the Board. After a hearing on 18 January 2017, the Board dismissed the appeal on 25 April 2017. For the reasons and analysis stated in [35] to [40] of the Board’s decision, it was found that it was clear from the applicant’s own evidence that she had not been subjected to serious harm in the past and her assertions of future harm were not supported by any direct evidence and her evidence were vague, speculative and not persuasive. The Board considered that she had exaggerated her claims and that her evidence in relation to Eduardo’s membership of the NPA was not credible either. For the aforesaid reasons, the Board rejected her claim on all applicable grounds.

HCAL 215/2017

8.  On 19 May 2017, the applicant applied for leave for judicial review against the Board’s decision before Deputy High Court Judge Woodcock (“DHCJ Woodcock”) in HCAL 215/2017.  By her decision of 4 August 2017, DHCJ Woodcock found no substance in her intended challenge and there was no error of law or procedural unfairness or irregularities in the Board’s decision and therefore, dismissed the applicant’s application.  The applicant did not appeal against DHCJ Woodcock’s decision. 

HCAL 197/2018

9.  On 8 February 2018, the applicant filed another Form 86 for leave to apply for judicial review of the Board’s decision.  In her supporting affirmation filed on the same day, she reiterated the background of her case and set out some articles / provisions under International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance (Cap. 383), Basic Law, United Nations Convention Against Torture and some case law in relation to judicial review. The applicant further advanced the following grounds of complaint against the Board’s decision:

(1)     failing to carry out sufficient research and inquiry into the COI conditions of Philippines;

(2)     failing to properly assess and give weight to relevant COI that resulted in unreasonable decision;

(3)     failing to evaluate whether State protection was available and misdirected on law in relation to the extended meaning of State protection;

(4)     taking into account of irrelevant matter and failing to take into account of the factors that were favourable to the applicant’s case;

(5)     failing to obtain psychological and psychiatric reports of the applicant;

(6)     applying the incorrect standard of proof; and

(7)     lack of legal assistance.

10.  The grounds of the intended challenge were the same as those set out in her supporting affirmation filed together with the Form 86 in HCAL 215/2017.

11.  DHCJ Lam heard the case on 21 August 2018. After due consideration of the Director’s and the Board’s decisions, and the fact that the applicant reapplied for leave for judicial review after it had been dismissal by DHCJ Woodcock, he decided to refuse leave for the applicant to apply for judicial review.  The reasons were duly set out at [23] to [29] of the Decision:

“Discussion

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

24. 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 scrutinizing 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.”

Repeated application for leave for judicial review

25. The Applicant's claim had been dealt with by the Director and the Adjudicator. She was not satisfied with their decision. She applied for leave for judicial review on 19 May 2017. The case number was HCAL215/2017.

26. Deputy High Court Judge Woodcock heard the Applicant and gave her decision on 4 August 2017. The Judge had considered the Applicant's case under ‘rigorous examination and anxious scrutiny’. She found the Adjudicator’s decision was not Wednesbury unreasonable. The Adjudicator made no errors of law and there was no procedural unfairness. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. The Judge ruled the Applicant's complaints were not reasonably arguable. She refused to grant the Applicant leave for judicial review.

27. The Applicant did not appeal against the Judge’s decision. She simply reapplied for leave for judicial review on the same grounds.

28. The Applicant had no good reason for her repeated application for leave for judicial review. She merely did not want to go back to the Philippines. Her unjustified repeated application is an abuse of process. It cannot be entertained.

29. The Judge in the 1^st judicial Review had duly considered her complaints. I should not reconsider them.”

12.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appeal (which expired on 18 April 2019).  By the summons filed on 24 June 2019, she sought an extension of time for her appeal against the Decision.  In the summons and her supporting affirmation, she did not provide any draft or proposed grounds of her intended appeal.  She merely explained the reason of delay that she did not receive the letter from the Court until 18 June 2019 without producing any supporting evidence such as a copy of the letter showing the date of the postage that it was indeed late. 

13.  By the decision dated 21 August 2019, DHCJ Chan refused to grant an extension of time as he was not satisfied that the applicant had provided any good reason for her delay and more importantly, the applicant had failed to provide any ground of appeal and none could be ascertained from the papers.  DHCJ Chan was not satisfied that the intended appeal had any merit and dismissed the summons accordingly.

The Renew Application

14.  By the summons dated 25 September 2019, the applicant renewed the matter before us.  In her supporting affidavit, she advanced two grounds of appeal:

(1)  The Honorable Deputy High Court Judge Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The Honorable Deputy High Court Judge Bruno Chan failed to provide detailed reason in support of his decision.

15.  In her written submissions, she set out two grounds of appeal:

(a)   The Board failed to scrutinized the Director’s decision and simply adopted the approach of seeing if it could “find fault with the decision of the Immigration officer”.  It also failed to properly considered the relevant COI of her country and it therefore failed to satisfy the “high standard of fairness” as set out in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.   She also quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 that the decisions of the Director and the Board had significant impact on her substantive right not to be subject to torture and to receive non-refoulement protection.

(b)  Minimum standards of procedural fairness required in decision-making process and the decision maker is under a duty to act fairly.

16.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

17.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

18.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  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 scrutinizing 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

19.  We are of the view that the delay of more than two months in taking out the summons for an extension of time to appeal against the Decision was substantial and the applicant failed to provide any good reason to explain the delay.  

20.  Therefore, the applicant must satisfy the Court that the intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227.  

21.  As rightly held by DHCJ Lam, the applicant provided no good reason for her repeated application for leave for judicial review on the same grounds, which is clearly an abuse of court process.   

22.  As such, the grounds of appeal and arguments set out in her supporting affidavit and written submissions are irrelevant and unarguable, and they would not take the applicant’s case any further.

23.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

24.  The summons dated 25 September 2019 is dismissed accordingly.

25.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] The correct citation should be ST v Betty Kwan.