RE VILLANUEVA REGGIE CAYANAN AND ANOTHER

CAMP 485/2021

[2023] HKCA 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO.433 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 817 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is the applicants’ renewed application for leave to appeal out of time against the decision[1] of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 September 2020 refusing leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) refusing to re-open the applicants’ appeal against the decision of the Director of Immigration (“the Director”) which rejected their non-refoulement claim.

2.  Under Order 59 rule 14A (1) of the Rules of the High Court, Cap 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the summons and the affirmation and written submissions of the applicants, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

3.  The 1^st applicant is a national of the Philippines aged 41. She was married in the Philippines and has two children. She last arrived in Hong Kong on 23 August 2014 with permission to remain to work as a foreign domestic helper. In August 2014, she had an extramarital relationship with an Indian man in Hong Kong and became pregnant. She gave birth to the 2^nd applicant, who is a girl, on 2 August 2015. Her employment contract was prematurely terminated on 30 November 2015. She overstayed and eventually surrendered to the Immigration Department on 15 March 2016.

4.  The 1^st applicant raised a non-refoulement claim for herself and also on behalf of the 2^nd applicant, based on fear of being harmed or killed by her husband over her adulterous affair in Hong Kong and the birth of the 2^nd applicant. In the Non-Refoulement Claim Form completed on 5 October 2016, the 1^st applicant asked for a joint assessment for herself and the 2^nd applicant. The details of their claim were set out at [6] to [9] of the Director’s decision dated 27 April 2017.

5.  By his decision, the Director rejected the applicants’ claim having regard to the torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds. In gist, the Director assessed the level of risk of harm from the 1^st applicant’s husband upon their return to the Philippines to be low due to the absence, or low intensity and frequency, of past ill-treatment from him. It was observed that there was no evidence that the 1^st applicant’s husband was even aware of the 2^nd applicant or has any intention to harm or kill her. In any event, their problem with the 1^st applicant’s husband is a private dispute without any official involvement. Further, state protection is available and internal relocation is a viable option for them.

Appeal to the Board and subsequent withdrawal

6.  On 10 May 2017, the applicants lodged an appeal to the Board against the Director’s decision. On 5 March 2018, the 1^st applicant wrote to the Director and the Board requesting to withdraw their appeal, stating that:

“…We want to go back to our home country Philippines since it is safe for us to go back. I want to withdraw our non-refoulement claim appeal as soon as possible so that we can go back. I have no money to buy air ticket. Please arrange as soon as possible.”

7.  The Board replied by letter dated 13 March 2018, informing the applicants that, unless they advised otherwise, the Board would presume that (1) they were applying to withdraw their appeal; (2) they consider it was safe for them to return to the Philippines; and (3) they understood the consequences that once the withdrawal was confirmed their appeal would be dismissed, and regarded as disposed of and finally determined in which case no further action would be taken by the Board in relation to the appeal. The letter also informed the applicant that the Board would proceed to consider their withdrawal application if no reply was received from them by 20 March 2018. The applicants did not respond to the Board’s letter.

8.  By another letter dated 21 March 2018, the Board informed the applicants that their request for withdrawal of the appeal was accepted and their appeal was accordingly dismissed. The Board stated in the letter that it was satisfied that (1) the applicants’ withdrawal application was freely sought; (2) they understood the consequences of the withdrawal; and (3) there was good reason for the proposed withdrawal of the appeal, namely that the applicants consider it was safe for them to return to the Philippines.

9.  Later on 4 April 2018, the 1^st applicant wrote to the Board on behalf of herself and the 2^nd applicant requesting to re-open their appeal for the reason that her husband was angry upon hearing their intention to return to the Philippines. She stated in the letter that:

“… I want to re-open my appeal because this lately that I inform there in Philippines that I’m going back home together with my daughter but my husband got angry and he doesn’t want me to back and he told me if I go back Philippines there will be a big trouble will happen to me. That’s why now I came in your office to ask if I can re-open my appeal …”

10.  By letter dated 19 April 2018, the Board rejected the request to reopen the applicants’ appeal. The letter stated as follows:

“Please be reminded of the material events that followed as a result of your request by way of written submission dated 5 March 2018 to withdraw your Appeal/Petition:

(a) The Board has acted on your request written submission dated 5 March 2018 that your appeal/petition be withdrawn;

(b) The Board has placed your request before a Board Member for consideration;

(c) The said Board Member has considered your request that your Appeal/Petition be withdrawn;

(d) After considering your request, the Board Member has granted your request for withdrawal of your Appeal/Petition;

(e) You were informed by letter dated 21 March 2018 that the Board Member had decided to grant your request for withdrawal of your Appeal/Petition.

As a consequence of the matters stated in the paragraph above:

(a) The Board Member has given a Direction that your Appeal/Petition is dismissed;

(b) The Board Member has given a Direction that the Notice of Decision by the Immigration Department dated 27 April 2017 is confirmed;

(c) Your Appeal/Petition has been disposed of, and has been finally determined by the Board;

(d) No further action can or will be taken by the Board in relation to your Appeal/Petition because the Board is “functus officio”, this means that, after the Board has accepted your withdrawal, the Board has no power or authority to deal any further with your Appeal/Petition. This position in law has been confirmed by the decision in HCAL 20/2015 dated 17 March 2017.

For all the reasons given, your request to resume or reinstate your Appeal/Petition cannot be acceded to.”

Application for leave for judicial review

11.  By a Form 86 filed on 10 May 2018, the 1^st applicant applied on behalf of herself and the 2^nd applicant for leave to judicially review the Board’s decision. Other than stating in the supporting affirmation that her husband would harm her and the 2^nd applicant, the 1^st applicant did not put forward any ground for seeking relief.

12.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 22 September 2020[6], he refused to give leave to the applicants to apply for judicial and gave his reasons at [13] to [16] as follows:

“13 … As such and in the absence of any error of law in the Board’s decision clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

14. It is clear to me from their earlier written request that the Applicants did validly withdraw their appeal as a result of an informed and considered decision to return to their home in the Philippines, and upon which the Board had acted accordingly. As such the Board is clearly functus officio with no jurisdiction to do anything further regarding their appeal, as correctly pointed out to the Applicants in the Board’s decision to refuse to re-open their appeal, as has been held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, 13 June 2019, that in such circumstances the Board can only “reinstate” an invalidly withdrawn appeal against the Director’s rejection of a non-refoulement claim, as Hon Lisa Wong J in giving judgment of the court stated in [41]:

“Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]- [40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

15. Of course if on the other hand the withdrawal is invalid due to mistake or misunderstanding in the Applicants’ decision to withdraw their appeal, as pointed out by Her Ladyship in [43] of the judgment, it would remain extant so that the Board can resume processing the appeal upon the Applicants’ application, but as already noted above, this is not what I read from their letter of 4 April 2018 to the Board requesting to re-open their appeal, nor is there any intention shown in their Form 86 or supporting affidavit to contest the validity of their earlier withdrawal of their appeal to the Board against the Director’s decision, other than a claim that A1’s husband “got angry and does not want (her) to go back to the Philippines” which could not, in my view, affect the validity of their earlier withdrawal. Similarly, nor could their subsequent change of mind, for whatever reason, invalidate their earlier withdrawal of their appeal.

16. In the premises, and for these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

Application for extension of time to appeal

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicants may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 6 October 2020.

14.  By a summons and an affirmation filed on 23 November 2020, the 1^st applicant applied on behalf of herself and the 2^nd applicant for an extension of time to appeal the Judge’s decision. The Judge heard the application at an oral hearing held on 20 April 2021. By his decision handed down on 4 May 2021[7], the Judge refused the application

15.  On 26 October 2021, the 1^st applicant filed the present summons on behalf of herself and the 2^nd applicant to make a further application to this Court for extension of time to appeal. Pursuant to the directions given by the Registrar of Civil Appeals, she has also filed a written submission to support the application on 20 May 2022.

Discussion

16.  In deciding whether to extend the time for appealing the Judge’s decision refusing them leave to apply for judicial review, the Court will consider: (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.  The applicant was late by seven weeks, which is substantial in the context of the 14-day time limit. She explained in her supporting affirmation it was because she did not know how to make the application and did not have the money to do so. While we accept that the applicant was unrepresented and might not familiar with legal procedures, we also note there is a substantial delay of seven weeks and there are no elaborations or details of the attempts made to seek assistance, such as approaching the court registry. In the circumstances, we do not find the delay to have been satisfactorily explained.

18.  As to the merits of the intended appeal, the relevant legal principles have been comprehensively set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, 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’s decision, 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. The courts will scrutinise the Board’s decision, and intervene by judicial review, only for errors of law, procedural unfairness or irrationality.

19.  In the written submissions, the 1^st applicant reiterated the facts of the non-refoulement claim. She added that her husband already found out her relationship with another man and the birth of the 2^nd applicant. She claimed that she would be jailed for adultery in the Philippines, her daughter would be discriminated against as an illegitimate child, and she might not be able to find a job in another city in the Philippines in which case they would starve to death.

20.  In the present case, the subject matter of the applicants’ intended judicial review was the Board’s decision not to accede to the applicants’ request to re-open their appeal to the Board. It is established law that once the Board dismisses an appeal against the Director’s decision consequent upon a valid withdrawal or abandonment of the appeal by the claimant, being a deliberate and informed decision of the claimant, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step further regarding the appeal: Das Purnima Rani [2019] HKCA 669 at [41].

21.  Section 37V(2)(b) of the Immigration Ordinance further provides that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. It has been held that an appeal is dismissed and disposed of upon its withdrawal, notwithstanding there is no determination on the merits: Hussain Tasawar v Betty Kwan (Adjudicator) [2017] 2 HKLRD 567 at [36] to [40]; and Das Purnima Rani, supra, at [41]).

22.  The only option available to a claimant, who has validly withdrawn his appeal to the Board, is to make a fresh non-refoulement claim under section 37ZO (2) of the Immigration Ordinance[8] subject to satisfying the requirements in sub-sections (a) and (b) thereunder.

23.  In the present case, the applicants do not contest the validity of their earlier withdrawal to the Board. Their request to re-open the appeal is based on the ongoing situation with the 1^st applicant’s husband. On the facts, the applicants’ application to withdraw the appeal was a deliberate and informed decision made by the 1^st applicant for herself and on behalf of the 2^nd applicant. In accordance with established principles (see [20] above), their appeal has been dismissed and disposed of by the Board on 21 March 2018 upon their withdrawal. This being the case, the Board has become functus officio and does not have jurisdiction to further deal with their appeal.

24.  At the hearing of the application for extension of time before the Judge, the 1^st applicant sought to argue that the Board should have considered the minor-specific risks pertaining to the 2^nd applicant’s claim. The Judge rejected the submission, taking the view that they were irrelevant to the issue regarding the validity of their withdrawal. We agree. The issue before the Judge was whether the Board had erred in law or in facts in holding that the applicants’ withdrawal of their appeal was valid and the Board did not have jurisdiction to further deal with their appeal. The Board had not engaged in any assessment of risks faced by the applicants. Whether the 2^nd applicant might face risks of harm specific to herself, whether there ought to be consideration of minor-specific risks, and whether their intended appeal to the Board has merits are not relevant considerations for the Judge.

25.  We also agree that despite there having been no determination of the merits, the Board had by the dismissal of the applicants’ appeal upon its withdrawal finally disposed of the appeal. Had it been otherwise, not only would there be no finality in the determination of such claims, it could also lead to abuse by claimants who are desirous of delaying their removal from Hong Kong by making last minute withdrawals and then applying to reinstate or reopen the appeals: Das Purnima Rani, supra, at [41].

26.  In summary, the Judge was correct in finding the intended judicial review by both applicants has no reasonable prospect of success and refusing to give leave to apply for judicial review.

27.  We will treat the non-compliance with Order 80 rule 2 of the Rules of the High Court[9] as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court: see Zoraydah v Torture Claims Appeal Board [2020] HKCA 442. As the intended appeal has no merits, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicants’ summons filed on 26 October 2021.