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CAMP 493/2021
[2022] HKCA 473
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 493 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 1912 OF 2018)
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| RE: |
BANDOJO MARY GRACE MARIO |
Applicant |
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Before: Hon Au and Chow JJA in Court
Date of Judgment: 31 March 2022
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J U D G M E N T
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Hon Au JA (giving the Judgment of the Court):
1. By a summons dated 2 November 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 30 July 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 2070) (“EOT Decision”) against the Deputy Judge’s earlier order dated 4 August 2020, whereby the Deputy Judge refused her application for leave to apply for judicial review ([2020] HKCFI 1850) (“Leave Decision”).
2. The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 31 August 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 22 March 2018, rejecting her claim for non-refoulement protection (“the Director’s Decision”).
3. Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).
Background
4. The applicant is a national of the Philippines. She last arrived in Hong Kong on 20 April 2016 and was allowed to stay on visitor condition until 4 May 2016, which was later extended to 18 May 2016. Thereafter, she failed to depart and overstayed. On 19 May 2016, she surrendered to the Immigration Department and lodged a non-refoulement claim on 11 July 2016 on the basis that if refouled, she would be harmed or killed by Ramor A Ilagan because of a land dispute. Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.
5. By a Notice of Decision dated 22 March 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].
6. The applicant appealed against the Director’s Decision to the Board. The applicant attended an oral hearing before the Board on 10 July 2018 and gave evidence with the assistance of a Tagalog interpreter. The Board dismissed her appeal on 31 August 2018 and confirmed the Director’s Decision. Having assessed the evidence, the Board considered that the applicant would not have any real risk of harm upon her return and that state protection would be available to her. The Board found that the applicant failed to establish her claim on all applicable grounds and accordingly dismissed her appeal.
The Leave Decision
7. On 12 September 2018, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.
8. By the Leave Decision, the Deputy Judge refused to grant the applicant leave to apply for judicial review for the following reasons:
“Application for leave to apply for judicial review
11. The applicant filed Form 86 on 12 September 2018 for leave to apply for judicial review of the Board’s Decision on the grounds below.
1. Misdirection in the law: the Adjudicator took the view that the applicant had to experience torture in the past for establishing the ground of real risk.
2. Procedural impropriety/unfairness: the Adjudicator failed to carry out sufficient research into the country of origin information with regard to her situations; there being no legal representation for the applicant.
3. Irrationality: the Adjudicator had not given due weight to the country of origin information or cherry-picking information to turn down her appeal; failing to find that a consistent pattern of gross, flagrant or mass violation of human right in the Philippines; failing to analyze state protection; failing to give weight to relevant materials and giving weight to irrelevant materials.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See paragraph 10 above.
13. 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.’
14. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22].
15. Apart from the lack of legal representation, which will not assist her application in view of the above authority, the other grounds in §11 are her opinions without any evidence or specifics in support of them. They fail. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
17. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”
The EOT Decision
9. Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.
10. On 22 September 2020, the applicant filed a summons (“EOT Summons”) together with a supporting affidavit for extension of time to appeal against the Leave Decision. By then, she was eight days late with her intended appeal. In her supporting affidavit, she contended that she did not receive the letter from the Court. She claimed she had moved her home in March 2020 and her landlord only gave her the letter on 21 September 2020. By then, she already missed the deadline for filing her notice of appeal.
11. By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal. The Deputy Judge considered that the applicant failed to demonstrate any error in the Board’s Decision and had not demonstrated any reasonable prospect of success in her intended appeal. Accordingly, the EOT Summons was dismissed.
The Present Application
12. By a summons and supporting affidavit dated 2 November 2021, the applicant applied for leave to appeal against the EOT Decision to this Court. In her summons and supporting affidavit, she alleged that she did not receive any letter from the Court until October 2021 when her immigration case officer informed her about her case. By then, she had already missed the deadline for filing her notice of appeal. She also contended that the Court and the Board disregarded the possible danger and harm she would face if she returned to the Philippines.
13. Pursuant to the directions of the Registrar of Civil Appeals made on 2 November 2021, the applicant lodged her written submissions on 16 November 2021. In her written submissions, the applicant claimed that the Board was insensitive to her case and had overlooked or was misguided to believe that the Philippines would practise the rule of law or protect her. She alleged that there was procedural unfairness owing to the Board’s lack of understanding about the Philippines. She further contended that there had been unlawful killing by the police and armed individuals and that the Philippines was ruled by a dictatorial president.
Discussion
14. Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.
15. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].
16. Although a delay of eight days is not substantial, the applicant did not provide any specific particulars or evidence in support of her reason for the delay. The Court record also showed that the Leave Decision was posted to her last known address without being returned undelivered. As repeatedly emphasised by this Court, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].
17. As the applicant failed to provide any cogent explanation for her delay, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].
18. In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].
19. Nowhere in the summons, supporting affidavit or written submissions for the present application did the applicant identify any error in the Leave Decision with specific particulars. As such, no viable ground of appeal was given by the applicant. The intended appeal must fail on this basis alone.
20. Further, as repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily matters within the province of the Board (and the Director) as primary decision makers. 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: 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].
21. In any event, we have reviewed both the Board’s Decision and the Leave Decision and the reasons the Board and the Deputy Judge gave for their decisions. We agree with the Deputy Judge that there is no ground warranting any interference with the Board’s Decision by the Court by way of judicial review.
22. For the above reasons, the intended appeal has no prospect of success. It will be futile to extend time. The application for extension of time to appeal is therefore refused and the summons filed on 2 November 2021 dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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