Caramat Virginia Lobeban and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 265 /2019

[2020] HKCA 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 745 OF 2017)

________________________

________________________

Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 5 November 2019

Date of Judgment: 20 May 2020

________________________

J U D G M E N T

________________________

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

1.On 23 August 2018, Deputy High Court Judge Josiah Lam refused the applicants’ application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claim^[1].

2.On 2 August 2019, the applicants applied for leave to appeal against the said decision out of time.  Their application was refused by Deputy High Court Judge Bruno Chan on 14 October 2019 as he considered that the intended appeal does not have any prospect of success^[2].

3.The applicants took out a renewed application for leave to appeal against the judge’s decision out of time to the Court of Appeal on 21 October 2019.

4.The 1^st applicant is a national of Philippines of 47 years old.  The 2^nd to 4^th applicants are her minor children^[3].  All four entered Hong Kong as visitors in April 2014.  They overstayed and surrendered to the Immigration Department on 5 May 2014.  The 1^st applicant submitted a non-refoulement claim for herself and the 2^nd to 4^th applicants on 8 May 2014.  She claimed that her brother would harm or kill them because she has converted from Christianity to Islam and her children are also Muslims. 

The Director’s decisions

5.By a Notice of Decision dated 24 October 2014 and a Notice of Further Decision on 30 December 2016, the Director rejected the applicants’ non-refoulement claim on all applicable grounds.

The Board’s decision

6.The applicants appealed against the Director’s decision dated 24 October 2014 to the Board.  The Board considered that the evidence does not show any harm or any threat of harm as instigated by state agent in the capacity of the state nor was any harm or any threat of harm done or uttered under the colour of state authority or in the ostensible exercise of public authority.  On the 1^st applicant’s own evidence, neither she nor any of her children had sustained serious injury or serious harm.  The Board found there is no substantial ground to believe that they will face future risk of serious harm.  The Board assessed that the applicants can relocate in other places in the Philippines without undue hardship.  Hence the appeal was dismissed by the Board on the grounds of torture risk^[4], BOR 3 risk^[5] and persecution risk^[6] on 15 January 2016.

7.On 23 February 2017, the applicants appealed against the Director’s further decision.  The appeal was dismissed by the Board on 22 September 2017 as the Board found that the applicants had failed to establish a case under BOR 2 risk^[7].

The intended judicial review

8.The applicants filed a Form 86 and an affirmation on 10 October 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

9.An oral hearing was conducted before the judge on 12 June 2018.  The judge held that there is no substance in the applicants’ complaints.  The Director and the Board had proper basis for their findings and conclusions, and their decisions were not Wednesbury unreasonable.  They made no errors of law and there was no procedural unfairness.  They were acquainted with the facts and applied the law correctly.  They had achieved the high standards of fairness required of the applicants’ non-refoulement claims.  The judge considered that the applicants’ intended application for judicial review does not have any realistic prospects of success and refused their application on 23 August 2018. 

Grounds of appeal

10.The grounds of appeal stated in the applicants’ written submissions may be summarized as follows:

(1)  They will face problems and receive threats should they return to the Philippines or Pakistan^[8]. In practice, families who have religious differences and problems are not protected in the Philippines and will be considered as private matter. Pakistan does not respect a divorced foreign woman.  Her children will be considered as bastard children and there have been reports about how these children were killed^[9].

(2)  The human rights report showed that the Philippines is fraught with unlawful killings by the police and armed individuals. The Philippines would withdraw from the international criminal court.  The problem there is obvious. The country is currently run by a dictatorial president who failed in his accountability and there have been many cases of extrajudicial killings.  The Board overlooked or was misguided to believe that the Philippines will actually practise the rule of law when in fact the law cannot really protect her^[10].

Analysis

11.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account the following: (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.

12.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 23 August 2018.  The applicants took out a summons in the court below on 2 August 2019.  The application was late by more than 10 months exclusive of the intervening summer vacation of the High Court.  The delay is very substantial.

13.The 1^st applicant stated in the summons and affirmation that she did not understand the procedure and did not know where to seek help until an officer told her that she needed to appeal.  It was only when she found help from an NGO that she understood the procedure.

14.Ignorance of the law is not a reasonable excuse for the substantial delay. When the applicants’ delay is inexcusable, they must show a real prospect of success on the merits: Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 H.K.C. 125. 

15.In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  The assessment of evidence, COI, risk of harm, state protection and viability of internal relocation is 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.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.In the present application, the Board found that the 1^st applicant’s brother is not a state agent, there is no evidence of injury which satisfied the prescribed minimum level of severity and there is no substantial ground to believe that the applicants will face future risk of serious harm.  The applicants failed to provide viable evidence to refute the Board’s findings and failed to show that there are errors of law or procedural unfairness or irrationality in the decisions of the Board.

19.The applicants also failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

20.For the above reasons, they do not have any prospect of success in the intended appeal. We dismiss the summons filed on 21 October 2019.

The Applicants, acting in person