Re Villareal Esperanza Valdez

CAMP 175/2019

[2021] HKCA 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 175 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 405 OF 2018)

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J U D G M E N T

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The Court:

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 24 December 2018 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 28 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Philippines.  She last entered Hong Kong on 12 July 2011 to work as a foreign domestic helper.  Her employment was terminated prematurely and she raised a torture claim on 17 July 2012.   Her torture claim was rejected.  She later lodged a non-refoulement claim on 13 March 2014. 

3.The applicant’s claim was based on threats from her husband and creditors.  The details of the applicant’s claim have been summarised by the judge at [2] to [10] of the CALL-1 Form.

4.By a Notice of Decision dated 18 October 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2] and the persecution risk^[3].

5.The applicant appealed to the Board.  After a hearing on 3 January 2018, the Board dismissed the appeal on 28 February 2018 (“the Board’s Decision”).

6.At [45] of the Board’s Decision, the Board found that there were some concerns over the credibility of the applicant.  The Board held that even if it accepted the applicant’s evidence, the applicant will not be at risk from any of the proscribed harms upon her return.  The Board was also satisfied at [53] – [54] that state protection would be available for the applicant and at [49] that internal relocation would be viable.

The judge’s decision

7.The applicant filed a Form 86 on 13 March 2018 which contained no ground for seeking relief.

8.In her affirmation dated 13 March 2018, the applicant advanced a number of grounds for judicial review against the Board and the Director.  The grounds against the Board have been summarized by the judge at [29] – [32] of the CALL-1 Form:

“29. The Applicant complained the Adjudicator failed to conduct sufficient enquiry or critical analysis of relevant country-of-origin information (‘COI’); failed to provide justification as to why certain COI was preferred and cherry-picked information.

30. The Applicant also complained the Adjudicator failed to take into account her psychological strain due to threats from the enemies. She objected to the Adjudicator’s finding that she had not been inflicted with ill-treatment to a minimum level of severity.

31. The Applicant accused the Adjudicator failed to consider extended state acquiescence.

32. The Applicant complained there was insufficient basis for the Adjudicator to find she faced no risk of harm. In particular, she said the Adjudicator was wrong to conclude there was no BOR3 risk and failed to give reasons.”

9.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [36] to [42] of the CALL-1 Form:

“36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

37. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are 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.” 

38. The Applicant complained the Adjudicator failed to conduct sufficient enquiry and critical analysis of COI. I do not agree. The Adjudicator had considered sufficient relevant COI to conclude that reasonable state protection and internal relocation were available to the Applicant. Her finding was not Wednesbury unreasonable. The Adjudicator need not state her mental process in the report. There was no evidence the Adjudicator cherry-picked information.

39. The Adjudicator was not satisfied there was state acquiescence of any kind.

40. The Applicant's claim of psychological suffering was bare assertion. It was not Wednesbury unreasonable for the Adjudicator to find the Applicant had not been inflicted with ill-treatment (physical and mental) to a minimum level of severity by her husband or by the two creditors. The Applicant had not passed the high-threshold test. The Adjudicator had proper basis to conclude the Applicant failed to establish any BOR3 risk, BOR2 risk or persecution risk. She gave sufficient and clear reasons for her decision.

41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

42. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.”

Application for extension of time to appeal and grounds for appeal

10.Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 31 May 2019, the applicant sought leave to appeal out of time.  Her application was dismissed by DHCJ Bruno Chan on 24 July 2019.

11.By a summons dated 29 July 2019, the applicant renewed her application for an extension of time to appeal before this court.  In the summons she stated that:

“The Plaintiff would like to seek leave to appeal out of time due to the fact that he did not receive the sealed order, CALL-1 and Judgment within 14 days from 24 July 2019 due to the order being lost in post. The Plaintiff could only get the Order, Call-1 and Judgment after searching the court file.”

12.In the affirmation of the same date, she deposed that:

“Due to the document being lost in Post, I received the sealed order, CALL-1 and Judgment within 14 days from 24 July 2019 and by that time, I had already missed the deadline to appeal within 14 days from the date of the judgment but there is nothing that I could do to prevent the document being lost in post. I could only get those documents after searching the court file.”

13.In her skeleton submissions dated 16 August 2019, the applicant submitted that the Board acted in a procedurally unfair manner and did not properly assess her credibility.  The Board’s Decision was unreasonable and unfair.

Discussion

14.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.The applicant made a bare assertion that the relevant court documents were lost in the post without giving any details.  She has not provided a satisfactory explanation for her delay in bringing the intended appeal.

16.The only ground of appeal set out in her submission complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

17.We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 29 July 2019 is dismissed accordingly.

18.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant, acting in person