RE CACABELOS REMMA BALTAZAR

CACV 470/2022, [2023] HKCA 419

On Appeal From [2022] HKCFI 3561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 470 OF 2022

(ON APPEAL FROM HCAL NO. 105 OF 2019)

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REASONS FOR JUDGMENT

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Hon Chu VP (giving the Reasons for Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 23 November 2022[1] refusing to extend the time for the applicant to apply for judicial review and dismissing her application for leave 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 (“the Board”)  dated 2 September 2016 dismissing the applicant’s appeal against the first decision of the Director of Immigration (“the Director”)  dated 20 May 2016 rejecting the applicant’s non-refoulement claim.

2.  At the hearing of the appeal, we had dismissed the appeal upon the request of the applicant to withdraw her appeal.  We indicated we would provide our reasons in writing, which we now do.

Background

3.  The applicant is a national of the Philippines.  She was born in 1985 in Barangay Arnap, Cabugao, Ilocos Sur Province in the Philippines. She entered Hong Kong as a foreign domestic helper on 5 August 2011 and was permitted to remain until 8 August 2013 or two weeks after the termination of her contract, whichever was earlier. Her employment contract was terminated prematurely on 12 March 2012 and she was required to leave on or before 26 March 2012.  She did not depart and has overstayed.  On 12 November 2015, she was arrested by the police.  She later raised a non-refoulement claim based on fear of being harmed or killed by her husband (“Joseph”).  The details of her claim are set out in the Director’s first decision at [6] and the Board’s decision at [13] and [14].    

4.  In gist, the applicant claimed that she met Joseph in 2002 and gave birth to their son Jahven in 2007.  They married in 2010.  Joseph became an alcoholic and was abusive towards her.  On two occasions in August and September, after he was drunk, Joseph punched the applicant’s back with his fist and hit her head with a piece of firewood.  She sustained injuries and was treated in the hospital.  She moved with Jahven to live in her parents’ home.  At the suggestion of her friend, she came to Hong Kong to work as a domestic helper so as to escape from Joseph.  She left Jahven to the care of her parents.  Joseph threatened to kill her because she refused to let him have the custody of Jahven.  

The Director’s decisions

5.  By two decisions dated 20 May and 24 November 2016, the Director rejected the applicant’s claim. The first decision covered the BOR 3 risk[2], persecution risk[3] and torture risk[4] grounds, while the further decision dealt with the BOR 2 risk[5] ground.

The Board’s decision

6.  The applicant appealed the Director’s first decision to the Board.  The Board heard the appeal on 16 August 2016, during which the applicant gave evidence.  By its decision dated 2 September 2016, the Board dismissed her appeal having regard to the torture risk, persecution risk and BOR 3 risk grounds.

7.  The Board had regard to the relevant country of origin information (COI)  and the evidence of the applicant, and found that it was open to Joseph to get the custody of Jahven through the court proceedings without the need to inflict any harm on the applicant.  As such, there was no real risk of Joseph causing any harm to her simply because she refused to allow him to have the custody of their son.  The Board also found there was no evidence of the applicant having suffered physical and/or mental suffering of the requisite severity, or that the authorities in the Philippines had acquiesced in the alleged ill-treatment of the applicant. The Board further found internal relocation was viable.  The Board concluded that the applicant failed to satisfy the requirements for non-refoulement protection under each of the applicable grounds.

8.  The applicant did not lodge any appeal to the Board against the Director’s further decision[6].   

The Judge’s decision

9.  On 11 January 2019, the applicant filed her Form 86 to apply for leave to judicially review the Board’s decision.  Order 59 rule 4(1)  of the Rules of the High Court, Cap. 4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s application was more than 2 years late.

10.  In the Form 86 and the supporting affirmation, the applicant raised the following grounds for relief:

(1)  The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirements.

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal.  The Director delivered the appeal bundle just six days before the appeal, and she did not have enough time to prepare for the appeal, as the documents were mostly written in English.

(3)  The Board’s decision was unreasonable or irrational or was the result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

11.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 23 November 2022, the Judge refused to extend time and dismissed the application for leave to apply for judicial review.  His considerations are encapsulated in [13] to [20] as follows:

“13. As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file her application for leave to apply for judicial review is on 2 December 2016. The delay is 2 years and 39 days. The delay is therefore serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merits of the applicant’s case.

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

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understands the Board’s Decision and she simply wants to stay.

16. 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.’

17. The grounds in paragraph 12 above do not assist her application. The Board has no obligation to inform her that she may make written submissions. The applicant has not been able to say what disadvantage this procedural omission had caused to her. The other grounds are only her assertions or opinions without any evidence in support.

18. The Court does not find any error of law or procedural unfairness in the Board’s 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.”

This appeal

12.  By a Notice of Appeal filed on 30 November 2022, the applicant appeals the Judge’s decision to this court.  The Notice of Appeal stated the following as the grounds of appeal:

“The [appellant] will face hardship if he is to return back to his (sic)  home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

13.  In the written submissions lodged on 27 January 2023, the applicant put forward the following arguments:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making her liable to be removed and entailing significant implications for her substantive right not to be subjected to torture and her right to non-refoulement protection. Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan[7][2014] 4 HKLRD 277.

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas the Board should have considered matters such as the country conditions.

(3)  At common law, minimum standards of procedural fairness are required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].

Our reasons for judgment

14.  At the hearing of the appeal, the applicant informed us that she would like to go back to the Philippines.  She said her husband will be going to Italy to join his mother in around June or July this year, and she no longer worried about being harmed by him.  She further informed us that she would not pursue her appeal.

15.  In light of the applicant’s indication and request to withdraw her appeal, we have dismissed her appeal.

16.  In any event, the applicant’s appeal has no merits and is liable to be dismissed had she not withdrawn it.  Our reasons are as follows:

(1)  The general principles regarding an appeal in a non-refoulement case, which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14], are that:

(1.1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(1.2)  The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

(1.3)  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.

(2)  In light of the established legal principles set out above, the grounds and arguments stated in the Notice of Appeal and the written submissions are unarguable in that:

(2.1)  The applicant’s application for leave to apply for judicial review is more than two years late, which is very serious delay.  In her Form 86 and supporting affirmation, the applicant had given no explanation for the delay. In these circumstances, the applicant has to demonstrate that her intended judicial review has a real prospect of success.  

(2.2)  The Judge held that the applicant’s intended judicial review enjoyed no reasonable prospect of success.  In neither the Notice of Appeal nor the written submission, the applicant has not pointed to any error in the Judge’s conclusion.  Her complaints are directed solely at the Board’s decision.

(2.3)  The complaint about the Board’s use of and reliance on COI is vague and devoid of particulars. The applicant has not, for example, set out which piece of COI relied on by the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds.

(2.4)  The complaint in the written submission that the Board did not approach the appeal as a rehearing is factually incorrect.  It is evident from the Board’s decision that it did not, as the applicant suggested, approach the appeal simply by trying to see if the Director’s decision was justified.  On the contrary, the Board had considered and analysed the applicant’s evidence in detail as well as the COI materials before reaching its own findings and conclusion on the applicant’s claim.

(2.5)  The applicant has not explained how the cases and legal principles cited in the written submission relate or apply to her case or appeal.

(2.6)  The applicant’s assertion that she will face hardship if she returns to her home country cannot stand in light of the Board’s finding that, on the evidence, she failed to satisfy the required threshold of risk of harm under each applicable ground.  Evaluation of risks is a matter for the Board, who is the primary decision maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  However, the applicant has not advanced any arguable ground in this appeal to challenge the assessment of risks made by the Board.

(2.7)  We have separately reviewed the Board’s decision and do not discern any basis for interfering with its assessment of the applicant’s claim, including the risks of harm that she may face if refouled to the Philippines.  The intended judicial review does not enjoy any prospect of success. In the circumstances, there is no proper basis for interfering with the Judge’s decision. 

17.  For all the above reasons, we have dismissed the appeal.