VILLAROSA RHEA LIMBAGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 38/2024, [2024] HKCA 655

On Appeal From [2021] HKCFI 1840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 38 OF 2024

(ON APPEAL FROM HCAL NO 2834 OF 2018)

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REASONS FOR JUDGMENT

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Hon Chow JA (giving the Reasons for Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 2 July 2021 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 September 2018, whereby the Board refused to extend time to the Applicant to file her notice of appeal against the decision of the Director of Immigration (“the Director”) dated 15 January 2018 under section 37ZT of the Immigration Ordinance (Cap 115) (“the Ordinance”)[1].

2.  At the conclusion of the hearing of the appeal on 16 July 2024, we allowed the Applicant’s appeal, with reasons to be given later, which we now do.

BACKGROUND

3.  The Applicant is a national of the Philippines. She last arrived in Hong Kong on 5 June 2016 to work as a foreign domestic helper with permission to remain until 9 October 2017 or within 14 days of its termination, whichever was the earlier. Her employment contract was prematurely terminated on 12 July 2016. She was permitted to stay as a visitor until 26 July 2016. She did not depart and overstayed in Hong Kong illegally. On 13 October 2016, she surrendered herself to the Immigration Department. On 20 February 2017, she raised a non-refoulement claim on the basis that if refouled, she would be harmed or killed by her boyfriend because she demanded her boyfriend to return the money that she had previously remitted to him, but he refused to do so.

4.  By a Notice of Decision dated 15 January 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[2], BOR 3 risk[3], BOR 2 risk[4], and persecution risk[5]. Essentially, the Director considered that (i) the low intensity and frequency of past ill-treatment and other relevant circumstances indicated that there was no substantial risk of harm to her upon her return to the Philippines (see the Director’s Decision at §§13-15); and (ii) state protection and internal relocation alternatives were both available to her (see the Director’s Decision at §§16-24).

5.  On 5 February 2018, the Applicant appealed the Director’s Decision to the Board. The appeal was lodged 7 days out of time. On 20 September 2018, the Board refused to extend time to the Applicant to file her notice of appeal (“the Board’s Decision”). The Board’s reasons were set out at §§8-11 of its decision, as follows:

“[8] The Notice of [the Director’s Decision] advised the Appellant of her right to appeal within 14 days from the date of the decision. The deadline for filing the appeal was 29 January 2018. The Notice of Appeal was received by the Board on 5 February 2018. In the application for Late Filing of Notice of Appeal/Petition, in Section 5 of the form, the Appellant stated the following:

‘I was late for passing my letter because the attorney office no interpreter at the we meet and we seat again the date January 24 2018.’

[9] No documentary or other supporting evidence was provided by the Appellant.

[10] The Board finds the Appellant’s reason for the late filing of her appeal unsatisfactory. While the Appellant submitted that an interpreter was not present when she first attended her attorney’s office, there is nothing in the very limited information she has provided to indicate whether an interpreter was present (or not) during her second meeting at her attorney’s office on 24 January 2018, several days prior to the deadline for filing her appeal prior to the expiration of the 14-day period. The Board notes in particular, based on the Appellant’s statement, she appeared to be in contact with an attorney and was therefore in a position to obtain advice or assistance in filing her appeal, regardless of whether she had the assistance of an interpreter.

[11] The Board finds the Appellant’s statement does not give adequate reasons for her delay in filing her appeal or sets out any special circumstances to explain her failure to file within time. As such, the Appellant’s application for the late filing of the Notice of Appeal/Petition non-refoulement claim is not allowed.”

THE JUDGE’S DECISION

6.  On 11 December 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and the Board’s Decision. No ground for seeking relief was given in the Form 86 or in her supporting affirmation of the same date.

7.  On 2 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[13] The Board could not be criticised for its conclusion. The Board may only consider whether to allow the late filing on the basis of the statement of reasons stated in the notice of appeal filed by the applicant and the relevant matters of fact within the Board’s own knowledge. Given the scanty information provided by the applicant, it was not known what happened on the applicant’s two visits. It was not known whether she arrived during office hours, whether there was an interpreter or staff present in the secretariat, what enquiries she had taken in connection with filing her notice of appeal, and what steps she had taken for that purpose. One would expect some credible and reasonable explanation would have been given explaining what happened on the two visits and why the applicant could not have lodged her notice of appeal and why she managed to do so on 5 February 2018. But there was none from the applicant.

[14] The blame the applicant put on the absence of an interpreter at the secretariat is just a lame excuse. There are non-refoulement claimants from at least five different countries speaking over ten different languages. The secretariat does not and certainly cannot be expected to have interpreters for ten different languages standing by waiting for intending appellants. The secretariat has a reception area and counter manned by staff to receive notices of appeal which is the sole function of the secretariat.

[15] In the light of the above, the applicant’s evidence about her two visits is inherently improbable. On her evidence, she was able to access the reception area of the secretariat, but found no interpreter. It is incredible that having accessed the reception area, she found no staff on duty who would receive her notice of appeal. It is incredible with her ability to communicate in English during her five years’ employment as a foreign domestic helper she could not have adequately expressed her wish to lodge the notice of appeal to the staff on duty. It is also incredible that she left on both occasions without lodging her notice of appeal. It is unexplained why she managed to successfully lodge it on 5 February 2018. Her explanation is unexplained and inherently improbable. The absence of particulars in her explanation reflects that the account given was not the whole truth and not credible. The inference is that her explanation was fabricated and she had no valid explanation for the delay.

No special circumstances

[16] The Board seemed to have jumped from the absence of a valid explanation to the conclusion that there were no special circumstances which would make it unjust not to allow the late filing of the notice of appeal without undergoing the third stage of the Begum analysis. Two important factors to be considered at this stage of the analysis are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. Hong Kong has been flooded with non-refoulement applications. Regrettably to say, many are unmeritorious, being threats arising from personal disputes than torture, cruelty, inhuman and degrading treatment, and punishment perceived under the relevant conventions. Unmeritorious claimants are burdening Hong Kong and the international community committed to give protection to genuine asylum seekers. Their applications are overloading our Unified Screening Mechanism in processing the claims and our judicial system in reviewing the decisions of the Board, much to the prejudice of genuine asylum seekers. There is a need to ensure that these applications are conducted efficiently and at proportionate cost. In this regard, compliance with rules, practice directions and court orders is of paramount importance. Subject to the overriding interest of justice, these rules, practice directions and court orders must be obeyed. This interest of justice would require a consideration of the merit of the application, ie the intended appeal against the decision of the Director in the Notice.

[17] On the applicant’s own case, her fear and risk arose out of a personal monetary dispute between her and her boyfriend; the threat was a verbal one and she never suffered any physical or actual harm; her boyfriend never made any attempt to find her mother to hurt her or trouble her while the applicant is in Hong Kong. For these reasons, the immigration officer considered that her boyfriend never had the intention to really harm or kill her; that the ill-treatment inflicted upon her had not attained a minimum level of severity such that non-refoulement protection is warranted; and that her risk of ill-treatment is low. On these findings, there is no factual basis to support the applicant’s claims for non-refoulement protection on any of the four applicable grounds.

[18] More specifically, the applicant’s boyfriend is indisputably not a public official or person acting with state authority or acquiescence of the state. This disqualifies her from claiming on the basis of Torture Risk ground as the ill-treatment could not be for a purpose or reason within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance. This disqualifies her from claiming on the basis of Persecution Risk ground because the fear or ill-treatment, even if real, are not related to one of the convention reasons, ie race, religion, nationality, membership of a particular social group or political opinion. Furthermore, on the basis of the Country of Origin Information, the immigration officer was satisfied that adequate state protection and internal relocation are available to prevent or avoid the harm. This disqualifies her from claiming under any of the four applicable grounds.

[19] In her notice of appeal [of the Board’s Decision], the applicant repeated her allegation that her boyfriend is still using drugs; that she was pregnant; and her fear of harm from her boyfriend. She advanced no specific grounds of appeal or attack on the finding of the Director. Her appeal is a challenge of the finding of fact of the Director which is solely within the province of the Director. There is no merit in the intended appeal.

Disposition

[20]  Here, the delay is not serious, but the reason given by the applicant is fabricated and invalid. The Board followed the procedure set out in section 37ZT [of the Immigration Ordinance] and the Petition Guide to the letter. Even though the Board did not mention [The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122], it effectively adopted the three-stage approach in that case. Given the absence of information from the applicant and other relevant matters of fact known to the Board, the Board could only draw as the only reasonable conclusion that there were no special circumstances which would make it unjust not to allow the late filing of the notice of appeal. The Board committed no error of law. The Board concluded that there were no special circumstances which would make it unjust not to allow the late filing. The conclusion is a finding of fact which is both justified and exclusively within the province of the Board as the tribunal of fact to make. Having rigorously examined the Board’s Decision and the papers, the court was satisfied that the Decision met the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. There was no procedural unfairness. The Board adhered to a very high standard of fairness. The applicant’s intended judicial review has no realistic prospect of success. Accordingly, leave to apply for judicial review was refused.”

8.  On 27 February 2023, the Judge refused the Applicant’s application by summons dated 26 January 2023 for an extension of time to appeal the Order. The Applicant explained that she had not received the Order and the court’s decision timeously to allow her to file her appeal within time. The Judge did not accept that explanation as being a good or sufficient explanation for her substantial delay of over one and a half year in making the application, noting that the Order and the court’s decision were sent to the Applicant by post on 2 July 2021 to her address as provided by her in the Form 86, and found that she had never informed the court of her changes of address despite it being her duty to do so. Anyhow, having considered the merits of the Applicant’s non-refoulement claim, the Judge held that even if the late filing of her appeal to the Board was allowed, such appeal “was doomed to fail” for want of merits. The Judge took the view that the intended judicial review had no prospect of success and hence refused the application for extension of time to appeal.

9.  By a further summons dated 15 March 2023 taken out in the Court of Appeal, the Applicant renewed her application for an extension of time to appeal. On 25 January 2024, another division of the Court of Appeal (constituted by Cheung and G Lam JJA) granted the Applicant an extension of time to appeal against the Order ([2024] HKCA 95, “the CA Judgment”). The Court of Appeal’s reasons for its decision are fully set out in the CA Judgment, and will not be repeated here. Concerning the merits of the intended appeal, the following was said:

“[14] However, we are concerned about the manner in how the Board dealt with the applicant’s appeal. In Re Qasim Ali [2019] HKCA 430, Lisa Wong J in delivering the decision of the Court of Appeal held:

‘9. 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) …’

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, 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.

26. 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 breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27 …’

[15] … The reasoning of Lisa Wong J in Re Qasim Ali applies. The Board did not consider the merits of the applicant’s case. The Judge in his decision in 2021 held that even if the Board was to consider the merits the applicant was ‘doomed to fail’. However, the principle is that the task of fact finding was within the province of the Board. It is clear that the procedural irregularity here is that the Board did not consider the merits of the applicant’s case and proceeded to refuse the applicant’s late filing of her notice of appeal. The Board should have, under section 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal albeit on paper without a hearing, regardless of the procedural breaches or the lack of explanation therefor.

[16] For these reasons, we are of the view that the intended application for judicial review is reasonably arguable.”

THIS APPEAL

10.  Pursuant to the CA Judgment, the Applicant, then acting in person, filed a Notice of Appeal on 31 January 2024. The Notice of Appeal is not a proper notice of appeal. It fails to identify the Judge’s Order dated 2 July 2021 as being the subject matter of the appeal, and further fails to set out any valid grounds of appeal against the Order. Nevertheless, in the written submissions dated 17 June 2024 filed by Mr Leung, counsel for the Applicant, who has since been granted legal aid, it is clear that the Applicant intends to adopt and rely upon the legal principles applied by the Court of Appeal in the CA Judgment for the purpose of the present appeal. Taking into account the fact that the Notice of Appeal was prepared by the Applicant without legal assistance, and that the basis and ground of her appeal can clearly be seen from the CA Judgment, we shall proceed to determine the substantive merits of the appeal.

DISCUSSION

11.  The issue in the present appeal is not whether the Board was correct in its decision to refuse to grant an extension of time to the Applicant to appeal against the Director’s Decision, but whether the Judge was correct to refuse to grant leave to the Applicant to apply for judicial review.

12.  Insofar as the Director’s Decision is concerned, in view of the fact it could be challenged by the Applicant by way of an appeal to the Board (provided that she lodged an appeal within the stipulated timeframe), we consider it to be clear that the Applicant is not entitled to seek to challenge the Director’s Decision by way of judicial review. Thus, although the application to seek judicial review of the Director’s Decision was not expressly addressed in the Judge’s decision, Mr Leung confirms that his client is no longer seeking leave to apply for judicial review of the Director’s Decision.

13.  Insofar as the Board’s Decision is concerned, the test for granting leave to apply for judicial review is whether the intended judicial review is reasonably arguable, ie one which enjoys realistic prospects of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). The Judge refused to grant leave because he considered, for the reasons set out in his decision dated 2 July 2021 (the relevant parts of which we have quoted at §7 above), the Applicant’s intended judicial review has no realistic prospect of success. However, in granting the Applicant an extension of time to appeal, the Court of Appeal (Cheung and G Lam JJA) came to the conclusion that the Applicant’s intended application for judicial review is reasonably arguable[6].

14.  We agree with the analysis in the CA Judgment. It follows that leave to apply for judicial review ought to be granted. We should make it clear, for the avoidance of doubt, that in granting leave to apply for judicial review, we are merely deciding that the Applicant’s intended judicial review of the Board Decision is “reasonably arguable”. The merit of the judicial review, including the question of whether the discretionary remedy of judicial review ought to be refused because the Applicant’s appeal to the Board was “doomed to fail for want of merits”[7], is a matter which will have to be fully considered in the substantive judicial review. We express no view on this matter.

DISPOSITION

15.  For the above reasons, the Applicant’s appeal is allowed, and the Order is set aside. We grant the Applicant leave to apply for judicial review of the Board’s Decision. For the avoidance of doubt, leave to apply for judicial review of the Director’s Decision is refused.

16.  In relation to the costs of the appeal, although the Applicant has been successful in the present appeal, neither the Director nor the Board has actively resisted the appeal. The Applicant’s Notice of Appeal is defective, and it was only at the hearing of the appeal that the Applicant (through her counsel) confirmed that she would no longer pursue her application for leave to apply for judicial review of the Director’s Decision. In all the circumstances, we made no order as to the costs of the appeal, save that the Applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.