Tomad Eva Balabag v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 133 /2020

[2021] HKCA 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 133 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2561 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 18 November 2020

Date of Judgment: 3 March 2021

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J U D G M E N T

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

1.On 11 September 2019, Deputy High Court Judge K W Lung refused the applicant’s 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 her non-refoulement protection claim^[1].

2.The applicant filed a summons on 13 October 2019 seeking leave to adduce a new ground of appeal and extension of time to appeal against that decision, as the 14-day period to file her appeal ended on 25 September 2019.  The application was heard by the judge on 15 July 2020 and dismissed on 31 July 2020^[2].

3.On 17 August 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 11 September 2019 and for leave to adduce a new ground of appeal.

4.The applicant is a national of the Philippines. She is 44 years old.  She entered Hong Kong as a visitor on 12 August 2009. She later overstayed and was arrested by the police on 22 February 2010.  She raised a torture claim on 26 April 2010 which was rejected by the Director on 5 July 2013.  She lodged her non-refoulement claim on 18 July 2013.  Her claim was made on the basis that she would be subjected to the threat by four armed strangers from the New People’s Army (“NPA”) and their leader because she had witnessed their involvement in the murder of her neighbour and she would be killed if she reports the murder to the police.

The Director’s decision

5.The refusal of her previous torture claim would not be reviewed under the Unified Screening Mechanism.  By a Notice of Decision dated 22 September 2017, the Director rejected the applicant’s claim on BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board.  The hearing of the appeal was conducted before the Board on 19 July 2018. The Board considered that the applicant’s claims regarding her problems in the Philippines were lacking in credibility because of the significant inconsistencies of her evidence.  The Board also found there is no factual basis for the applicant to fear harm by the NPA.  It was further assessed that the applicant could relocate to Manila to avoid any harm which may befall her in her home village.  Thus, the Board dismissed the applicant’s appeal on 5 October 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 14 November 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  She relied on the following grounds:

(1)  the decisions of the Director and the Board were unreasonable as BOR 2 risk should cover any extra‑judicial killings that she would face;

(2)  she was not given sufficient time and chance to arrange relevant evidence in support of her claim;

(3)  the Director had not considered state acquiescence and state protection for her;

(4)  the Director had not given due weight to the Country of Origin Information in support of her claim in relation to state protection; and

(5)  the Director had failed to take into account the corruption and incompetency of the administration in the Philippines and therefore had failed to maintain the high standard of fairness.

The judge’s decision

8.The applicant attended the hearing before DHCJ K W Lung on 10 April 2019.  The judge held that the applicant has not established any exceptional circumstances which would allow her to apply for judicial review of the Director’s decision.  Furthermore, the judge found that Ground (1) fails as she was not subjected to any criminal charge back in the Philippines and hence BOR 2 risk is not applicable.  Grounds (2) to (5) were also rejected as the applicant has no factual basis in support of her claim.

Grounds of intended appeal

9.The applicant stated her intended grounds of appeal in her written submissions which may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing her credibility.

Analysis

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

11.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 11 September 2019.  The applicant took out a summons at the court below on 3 October 2019.  She was late by about one week.

12.The applicant explained that she has not received the order.  However, in her previous application for extension of time at the court below, she did not mention that she had not received the order but only claimed that she was not provided with a notice of appeal.  The applicant’s explanations are inconsistent and not justified.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

13.As her delay is inexcusable, she must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.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.

15.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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, 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.

16.The applicant’s complaint against the Board is just bare assertion without particulars, elaboration or evidence in support. It is also contrary to her oral submissions before the judge at the hearing on 10 April 2019 during which she confirmed that she had a fair hearing before the Board and that she had no comments on the Board’s findings.  She 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. 

17.The applicant does not have any prospect of success in the intended appeal. We therefore dismiss the summons filed on 17 August 2020 and refuse to grant an extension of time to appeal.

The Applicant, acting in person

[1] [2019] HKCFI 2249

[2] [2020] HKCFI 1771

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the 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.