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CAMP 161/2022
[2022] HKCA 1865
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 161 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 3015/2018)
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| RE: |
TIZON EVELYN SANTOS |
Applicant |
____________________
Before: Hon Barma JA and G Lam JA in Court
Date of Judgment: 30 December 2022
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ P Li (“the Judge”) dated 26 August 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 27 December 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 22 February 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of the Philippines. She had worked as a foreign domestic helper in Hong Kong, with permission to remain until 12 November 2016. She overstayed and surrendered to the Immigration Department on 14 November 2016, and lodged a non-refoulement claim on 10 March 2017.
3. The applicant’s claim was based on a fear of being harmed or killed by her husband and her creditor. The details of the applicant’s claim have been summarised by the Judge at [2] to [19] of his decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 22 February 2018 (i.e. the Director’s Decision), the Director rejected the applicant’s non-refoulement claim. The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].
5. The applicant appealed to the Board against the Director’s Decision. After a hearing on 27 July 2018, the Board by its Decision dismissed the applicant’s appeal in respect of her claim based on all applicable risks. The Board found inconsistencies in the applicant’s evidence on the material events, which led it to conclude that she would not face a real risk of significant harm if she returns to the Philippines. In any event, the Board found that there was adequate state protection available, as well as internal relocation options for the applicant.
The Judge’s decision
6. The applicant filed a Form 86 on 31 December 2018 seeking to judicially review the Board’s Decision.
7. In her affidavit filed on 31 December 2018, the applicant exhibited a copy of the Board’s Decision, as well as a letter from the Board stating its Decision. The applicant also set out the hardship she had allegedly endured at the hand of her husband, including sexual abuse.
8. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave to the applicant to apply for judicial review. The Judge gave the following reasons in refusing to grant leave at [24] to [27] of the CALL‑1 Form:
“24. The applicant filed an application for leave for judicial review on 31/12/2018. In her affidavit in support, she did not specify any error of the TCAB decision. She disagreed with the findings of the TCAB. She repeated that she was sexually abused. She was physically and mentally abused.
25. In my view, the evidence as summarised above fully support the conclusion of the adjudicator. The factual basis of her claim was fragmentary and not credible. There were fundamental inconsistencies. I agree with the adjudicator.
26. I am satisfied that there was no error of law nor was there any procedural irregularity. The decision of the TCAB is rational.
Conclusion
27. For the reasons above, the applicant’s application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”
The present application for extension of time to appeal
9. The applicant’s address as stated in her Form 86 was at Fuk Wing Street, Sham Shui Po. The applicant later informed the court on 11 March 2020 that her updated address was at 20 Luk Ming Street, To Kwa Wan (“the Luk Ming Street Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Luk Ming Street Address on 26 August 2021. This letter was not returned undelivered.
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 26 August 2021.
11. The applicant took out a summons in the Court of First Instance on 21 October 2021 seeking extension of time to appeal, in which her address was stated to be at 65 Tam Kung Road, To Kwa Wan, and not the Luk Ming Street Address. In her supporting affidavit filed on the same date, she claimed that she did not receive the court’s letter dated 26 August 2021.
12. The applicant’s application to appeal out of time was dismissed by the Judge on 8 February 2022[6].
13. By a summons filed on 19 May 2022, the applicant renewed her application for an extension of time to appeal before this court (although the summons was made returnable before the Judge, it was clearly intended to be a fresh application to this court and has been treated as such). In the summons and her supporting affidavit filed on the same date, the applicant stated that she did not have the means to engage a lawyer, and asked this court to “reconsider [its] decision”.
14. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court. She is thus deemed to have abandoned her right to rely on written submissions.
15. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
Discussion
16. As noted above, the Judge’s decision dated 26 August 2021 was sent to the last known address of the applicant (which at the time was the Luk Ming Street Address) on the same day, and was not returned undelivered. The inference to be drawn is that she has received that letter from the court, and she has had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.
17. In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with her.
18. In the circumstances, we consider that the applicant has failed to proffer any reasonable explanation or reason for her delay in lodging her intended appeal.
19. The applicant was around 6 weeks out of time for the purpose of lodging her intended appeal when she applied for extension of time before the Judge. After the Judge dismissed her application, the applicant was again out of time for over 3 months in bringing the present renewed application before this court. These delays are substantial, and the application is liable to be dismissed on this basis alone.
20. However, we have nonetheless proceeded to consider the merits of the intended appeal.
21. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
22. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
23. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
24. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 19 May 2022 is accordingly dismissed.
(Aarif Barma)
Justice of Appeal |
(Godfrey Lam)
Justice of Appeal |
The applicant acting in person
[1] [2021] HKCFI 2511
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] 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.
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] [2022] HKCFI 389
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