RE ATIENZA CHONA MARASIGAN

CACV 383/2019

[2020] HKCA 23

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 383 OF 2019

(ON APPEAL FROM HCAL 2898 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Ms ATIENZA Chona Marasigan, against the order made by Deputy High Court Judge K W LUNG (“Judge”) on 7 August 2019 dismissing her application for leave to commence judicial review proceedings for want of prosecution. The intended judicial review proceedings sought to quash the decision of the Torture Claims Appeals Board (“Board”) given on 10 December 2018 (“Board’s Decision”). The Board’s Decision in turn refused the applicant’s application for late filing of her notice of appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such rejection by the Director was embodied in, and communicated to the applicant by, a notice of decision dated 28 March 2018 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines now aged about 44, is a fear of being harmed, or even killed, by her former boyfriend, one Edison Banson (“Banson”) Briefly, such alleged fear is said to arise out of the following circumstances:

(1) The applicant started to work as a foreign domestic helper in Hong Kong since 1997.

(2) She first met Banson, a drug pusher living in the same locality in the Philippines as the applicant, in around 1998.

(3) They became romantically involved. The relationship continued long distance while the applicant worked in Hong Kong.

(4) In 2012, while the applicant was on vacation back home, she found out that Banson was also a drug addict and confronted him. Banson, under the influence of drug, became violent. A fight ensued. At one point, he dragged the applicant while holding a knife. He was stopped from further hurting the applicant by his relatives and people nearby. This was the only incident during which Banson physically hurt the applicant. The applicant received a blacked eye, a bleeding nose and burst lips, which took her less than a week to recover without seeking medical treatment.

(5) The applicant did not report the incident to any authorities in the Philippines for fear that it would adversely affect her employment in Hong Kong. She, however, decided to break up with Banson who did not take it well and threatened to kill the applicant if she left him.

(6) The applicant remained at her home for the rest of her vacation and nothing eventful happened.

(7) The applicant returned to Hong Kong on 27 September 2012.  She had not since received any telephone calls or messages from Banson.

Last entry into Hong Kong and lodgment of NRF Claim

3.  The applicant last entered Hong Kong legally on 12 December 2012 with an employment visa to work as a foreign domestic helper and was, as such, permitted to remain for 2 years or until 14 days after the termination of contract, whichever was the earlier. Her employment contract was terminated prematurely on 27 February 2014. Upon her application on 12 March 2014, she was granted an extension of stay as a visitor until 15 March 2014. She did not leave Hong Kong as required and had overstayed since 16 March 2014. 

4.  The applicant surrendered to the Immigration Department on 27 May 2016. She lodged the NRF Claim initially by written representation, which was subsequently supplemented by a Non-refoulement Claim Form (“NCF”) dated 6 March 2018.

Director’s Decision

5.  In processing the NRF Claim, on 26 March 2018, the Director’s representative gave a screening interview to the applicant who then received legal assistance from the Duty Lawyer Service (“DLS”). 

6.  The Director’s Decision rejected the NRF Claim on all applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. The Director gave the following reasons:

(1) First, there was no real risk of the applicant being killed or harmed by Banson upon her return to the Philippines.

(a) The mild nature and low intensity and frequency of the past ill-treatment of the applicant by Banson indicated an unlikely future risk of harm.

(b) The applicant’s conducts in remaining at home in the same area as Banson after having been assaulted and threatened with death by him and in failing to report Banson to the Filipino police or to seek assistance in Hong Kong at an earlier stage were inconsistent with her claim of feeling imminent harm from Banson.

(c) That Banson attacked the applicant just once, not for want of opportunity, and inflicted relatively minor injuries on her suggested that he had no real intention to kill or seriously harm her. After threatening to kill the applicant if she left him, Banson did not appear to be at all enthusiastic to carry out such threat or even to locate the applicant after she returned to work in Hong Kong in 2012. Indeed, they have since lost all contact with each other.

(2) Second, the applicant’s dispute with Banson was purely private, with no question of there being any state involvement. The applicant’s subjective belief that Banson, being a drug pusher, might have connections with the authorities, which would therefore not protect her was mere speculation. There is in fact objective contrary country of origin information (COI) showing that reforms have been and are ongoing in the Philippines with positive results in recent years. The police in the Philippines do take actions to secure law and order. There are also official channels for reporting police malpractice. The availability of state protection would negate or lower the level of risk (if any).

(3) Third, many reasonable internal relocation alternatives (to, for example, Manila, Quezon or Cebu) are available to an able-bodied adult with some years of formal education and working experience like the applicant. She has not adduced any evidence that Banson would have the enthusiasm, or resources spreading over the entire country, to locate her.

Appeal to Board and Board’s Decision

7.  Pursuant to s 37ZS(1) of the Ordinance, the applicant could appeal against the Director’s Decision to the Board within 14 days of being given such decision. The Director’s Decision was served upon the DLS, the applicant’s then legal representative, by registered post on 28 March 2018. Under s 37ZV(3), in the absence of evidence to the contrary, the decision was presumed to have been served on the second working day after it was so sent. According to the Board’s reckoning, the time for appeal by the applicant expired on 17 April 2018.

8.  However, the applicant did not file her notice of appeal with the Board until 20 April 2018. In other words, her appeal to the Board was out of time for 3 days.

9.  In such situation, s 37ZT(1) requires the notice of appeal to include an application for late filing of the notice, which must include a statement of the reasons for failing to file the notice within time and be accompanied by any documentary evidence relied on in support of the reasons. Section 5 of the form for the notice of appeal to the Board contains such an application, in which the applicant wrote: “The date adjusted on 10 April 2018. Refer to the document (1)”. In the document referred to, the applicant elaborated (sic):

“To Whom It May Concern

This is to confirm that I, ATIENZA Chona Marasigan, has received today a Notice of Decision (“Notice”) dated 28 March 2018 attached with Notice of Appeal/Petition of Non-refoulement Claim Form from Immigration Department.

I understand that I have to file Notice of Appeal/Petition, if appropriate, accompanied by a copy of the Notice within 14 days from the date I received the Notice as stated in paragraph 38 of the Notice.

 I have been advised that there is no ground for appeal/petition against Immigration Department’s decision and my legal representative assigned by Pilot Scheme Office will not assist me in lodging an appeal/petition.”

10.  Section 37ZT then continues to provide:

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.” (emphasis added)

11.  The Board referred to s 37ZT(3) and directed itself that the regime governing late filing is strict and that if the applicant fails to comply with the time limit, it matters not whether the delay is for a few days or whether it is much longer, he is required to establish special circumstances which would make a refusal to allow the late filing unjust.  See [10] of the Board’s Decision.

12.  The Board’s reasons for refusing the applicant’s application for late filing of her notice of appeal can be found at [15]-[22] of the Board’s Decision as follows:

“15. The Appellant was late for 3 days. The Appellant, who was legally represented until the Appeal, would have explained to her about the Appeal, the relevant time limit for lodging the appeal/ petition and the importance of filing the Notice of Appeal within the prescribed time limit.

16. As I understand it, the reason for the lateness was that the Appellant understands the prescribed time limit to be 14 days from the date of her receipt of the Notice of Decision, i.e., 24 Apri.2018.

17. Despite the allegation that she was given the Notice of Decision on 10 April, 2018, the Appellant did not provide any information nor documents showing the date of her receipt of the Notice of Decision was indeed 10 April, 2018 other than making a bare assertion in a note (which was apparently prepared by someone with some knowledge of this kind of appeal/petition) attached to the Notice of Appeal. The Appellant’s attention of the strict requirement to provide information and documents to support the reason for the lateness was drawn: Section 5 of the Notice of Appeal. Yet, the Appellant did not provide the same nor did the Appellant complain against her then legal representative for giving the Notice of Decision to her lately.

18. There is equally no explanation as to why the Appellant took another 10 days to prepare and file the Notice of Appeal. Judging from the Notice of Appeal, it would take no more than 2 days to prepare and file the Notice of Appeal.

19. The Claim (which had prompted to make an important decision to stay in and lodge the non-refoulement claim in Hong Kong) must have been a very serious and important matter for the Appellant and the Appellant could no longer be legally employed in Hong Kong resulting that she could not derive income out of employment in Hong Kong. The Appellant would have been cautious and ought reasonably to have ensured that the Notice of Appeal was filed at the very first opportunity and as early as she could.

20. Section 37ZV(1)(c) clearly provides that document may be served upon the legal representative if the Appellant is acting by a legal representative. This is the case herein. Taking also into account of Section 37ZV(3) of the Ordinance, the deadline for filing of the Notice of Appeal falls on 17 April, 2018.

21. The then legal representative of the Appellant appointed under the Pilot Scheme Office must be familiar with the relevant requirements and would have explained to the Appellant the relevant rules and regulations as well as the importance of complying with the same and the deadline for filing of the time limit.

22. I am not satisfied that the Appellant has established a special circumstance which would make unjust a refusal to allow late filing of the Notice of Appeal.”

Application for leave for judicial review and Judge’s Decision

13.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 2898/2018 on 18 December 2018 (“Form 86”), the applicant sought leave to apply for judicial review to quash the Board’s Decision. The proposed grounds for judicial review that one can distill from the Form 86 and the supporting affirmation filed on the same date are tha:

(1) The Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement.

(2) The Board acted in a procedurally unfair manner in dealing with the appeal, particularly by not giving the applicant an oral hearing or inviting her to make written submission or submit evidence.

(3) The Board’s Decision was unreasonable or irrational in the public law sense, as a result of procedural errors or unfairness.

(4) The Board failed to meet the greater care and duty owed to a self-represented claimant. The lack of oral hearing was again cited as an example of the failure to meet such greater duty of care.

(5) The Board made the groundless speculation that it was safe for her to return to the Philippines by relying on source of news that is not officially recognised or is simply based on hearsay and on out-dated cases.

(6) The applicant was not provided with any legal or language assistance. She did not understand that she could make a complaint about the lack of an oral hearing before the Board.

14.  In the Form 86, the applicant requested an oral hearing of her leave application. The Judge duly conducted an oral hearing on 7 August 2019 at 10 am, which the applicant however failed to attend. 

15.  The Judge’s reasons for dismissing the applicant’s application for leave for judicial review for want of prosecution leave can be found at [5] and [6] of the Form CALL-1 dated 7 August 2019, [2019] HKCFI 1974 as follows:

“5.  The Court of Appeal in Re: Ahmed Syed Rafiq [2018] HKCA 178 (CACV 272/2017) 26 March 2018 held that for active case management, the Court has power to strike out the application for want of prosecution. See paragraph 12:

‘12. In Choy Bing Wing v President of Hong Kong Institute of Engineers (HKIE) (unreported, CACV 172/2013, 19 February 2014), it was held at [15] that “The court’s duty on active case management is equally applicable to appeals as in first instance cases. The expeditious and efficient disposal of appeals is important in the proper administration of justice”. The Court has power to strike out an appeal on the ground of abuse of process which includes a striking out for want of prosecution ([18]).’

6. Accordingly, the applicant’s application is dismissed for want of prosecution.”

Appeal to Court of Appeal and grounds of appeal

16.  By a notice of appeal filed herein on 19 August 2019, the applicant appealed against the dismissal of her application for leave for judicial review on the grounds that (sic):

“the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recogniszed, 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.”

17.  By the written submission lodged on 14 November 2019, the applicant referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim. 

18.  The applicant appeared in person at the hearing of the appeal on 17 December 2019. She reiterated that she received the Director’s Decision on 10 April 2018 and thought that the time for appeal to the Board would be counted from that date. She further explained that she did not receive the notice of the hearing before the Judge on 7 August 2019 because she had moved but she had only updated her address with the Shatin Magistrates’ Court where she was involved in another case, assuming that the information of her new address would somehow be shared with the High Court.

Court of First Instance’s role in judicial review in non-refoulement claim

19.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision in light of the grounds for judicial review proposed by the applicant, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

20.  An appeal against a refusal of leave to apply for judicial review (or, in this case, a striking out of the leave application) is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

21.  With respect to the Judge, while the Court of Appeal (Lam VP and Chu JA) reiterated in Ahmed Syed Rafiq, CACV 272/2017,[2018] HKCA 178, 26 March 2018[7] that the Court of Appeal’s active case management powers embrace the striking out of an appeal on the ground of abuse of process, which in turn includes a striking out for want of prosecution, as held by a differently constituted division of this court (Lam VP, Barma and Au JJA) in Abdus Salam, CACV 125/2019, [2019] HKCA 1091, 3 October 2019, at [17] to [26], it is not appropriate to dismiss an application for leave for judicial review for want of prosecution (which means that the applicant has no intention to pursue his application) merely because of a single failure to appear at the oral hearing of the leave application for judicial review. 

22.  As in Abdus Salam, we should consider the merits of the applicant’s application for leave for judicial review of the Board’s Decision.

23.  Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that, by reason of special circumstances, it would be unjust not to do so.

24.  Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing[8] whether it allows the late filing of the notice of appeal, and in doing so, to take account of the length of the delay, the explanation for the delay and “any other relevant matters of fact within the knowledge of the Board”.

25.  In this regard, The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016) alluded to the following 3-stage approach:

(1)  The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. If the breach is serious or significant, the decision maker then considers the second and third stages.

(2)  The second stage is to consider why the failure occurred.  If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage.

(3)  The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice and directions and court orders.

26.  While the Board did not expressly refer to Begum, its analysis resembled but did not exactly conform with the first and second stages of the Begum test. 

27.  With respect to the Board, we consider the following reasonably arguable on a proper application of the Begum test.

28.  First, a delay of 3 days is neither serious nor significant particularly where, as noted by the Board at [14] of its decision, 5 days of the statutory 14-day appeal period (i.e. 30, 31 March, 1, 2 and 5 April 2018) were public holidays. 

29.  Second, even if a delay of 3 days in such circumstance could be considered serious or significant, the applicant had arguably provided a sufficient and acceptable reason for the delay, i.e. she only received the Director’s Decision from her then legal representative on 10 April 2018 and thought that the 14 days started to run from that date. With respect to the Board, on paper, we do not find such explanation to be apparently untrue or incredible on the following considerations;

(1) The DLS, in addition to representing the applicant, was at the same time acting as the legal representative of numerous non-refoulement claimants and must, as such, have been served by the Director on a daily basis with a great number of decisions, which it then had to pass, and explain, to each of its corresponding clients by arranging for each of them to attend a relevant DLS office at a time that was convenient to both the client and a responsible DLS officer.

(2) And the DLS could not be expected to be able to predict when the Director’s decision would be rendered, and would reach it, in respect of any particular claim so that the DLS could make arrangement in advance with any particular claimant to collect the decision immediately upon DLS’ receipt of the same in the post.

(3) In the applicant’s case, the Director’s Decision was sent by registered post to the DLA on 28 March 2018. We would not have been surprised if the DLS itself had received the document in the normal course of post just before or even after the Easter holidays (i.e. 30 March to 2 April 2018).

(4) One would have expected the DLS to require some time to process the Director’s Decision after receiving the same (amongst many other similar decisions) and then to contact the applicant to collect it.

(5) With the intervening Easter and Ching Ming holidays, it does not appear to us to be beyond belief that the applicant herself did not receive from the DLS the Director’s Decision until 10 April 2018.

(6) We do not see why the fact that the applicant did not complain against the DLS for giving the Director’s Decision to her “lately” (see [17] of the Board’s Decision) (even if she had any cause to do so) would diminish the plausibility of her said explanation for the late filing of her notice of appeal with the Board.

(7) That the applicant did not provide any document to prove the date of her receipt of the Director’s Decision (see again [17] of the Board’s Decision) is also neither here nor there.  While the DLS may well have kept a record of a claimant’s date of collection of the Director’s decision on a refoulement claim from its office, there is no evidence that the claimant would be provided with a copy of such record.

(8) As for the Board’s assessment that the applicant should need no more than 2 days to prepare the notice of appeal lodged by her with the Board and its reliance on the lack of explanation as to why the applicant took 10 days to do so (see [18] to [19] of the Board’s Decision), s 37ZS(1) of the Ordinance gives a non-refoulement claimant 14 days to appeal against the Director’s rejection of his claim.

30.  Third, even where there is a serious or significant breach for which no good reason is given, the last of the 3-stage enquiry alluded to in Begum requires the decision maker to evaluate all the circumstances of the case that he knows of. The Board had not undertaken any such evaluation. In this connection, as held in Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20] and Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, [23]-[26]:

(1) In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance. 

(2) It would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

(3) The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breach or its opinion that the applicant had not provided a credible explanation for such breach. 

31.  For these reasons, we are of the view that the intended judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

32.  We are mindful of the fact that this is not exactly how the applicant argued this appeal in her notice of appeal or submission or the application for leave for judicial review in her Form 86 or supporting affirmation.

33.  As stated in [18] and [19] above, the Court of First Instance and the Court of Appeal consider the decision of the Board and the decision of the judge at first instance respectively in light of the proposed grounds for judicial review / grounds of appeal raised by the applicant.  We have no intention to derogate from such principle. Nevertheless, this Court has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice.  See, for example, Re MD Zahidur Rahman Manik, CACV 314/2018, [2018] HKCA 766, 29 October 2018; Re Khan Kamal Ahmed, supra, and Qasim Ali, supra.

Disposition

34.  We would therefore allow the appeal and grant leave to the applicant to apply for judicial review. 

35.  In accordance with Order 53 rule 5 of the Rules of the High Court (Cap 4A), the applicant should file and serve an originating summons within 14 days from the date of this judgment. The originating summons should set out the grounds (1) that the Board failed to find that the applicant’s delay was not serious or significant; (2) that the Board’s finding that the applicant had failed to provide a good reason for the delay was Wednesbury unreasonable; and (3) that the Board had failed to consider the substance of the applicant’s non-refoulement claim, which is a relevant matter of fact within the Board’s knowledge within the meaning of s 37ZT(2)(b) of the Ordinance.