David Honeyleth Manuel and Another v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CAMP 21/2021

[2021] HKCA 1275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 21 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 847 OF 2017)

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Before: Hon Au and Chow JJA in Court

Date of Written Submissions:  24 May 2021

Date of Judgment:  10 September 2021

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JUDGMENT

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Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1.By summons dated 14 January 2021, the Applicants applied to this Court for leave to appeal against the decision dated 8 October 2020 of Campbell-Moffat J (“Judge”) refusing to grant an extension of time (“EOT Decision”) for them to appeal against her earlier decision dated 19 May 2020 refusing their application for leave to apply for judicial review (“Leave Decision”).  By the Leave Decision, the Judge refused to grant leave to apply for judicial review of the decision dated 27 October 2017 of the Torture Claims Appeal Board (“Board”).  By the Board’s decision, it rejected the Applicants’ appeal against the decision dated 26 April 2016 and a further decision dated 10 July 2017 of the Director of Immigration (“Director”) rejecting their claims for non-refoulement protection.

2.Having considered the papers, we are of the view that it is appropriate to determine the present application without a hearing under Order 59, r 14A of the Rules of the High Court, Cap 4A (“RHC”).

BACKGROUND

3.The 1^st Applicant is a Filipino national. She was married in the Philippines in 2010.  As a result of her husband’s abuse, she left him in 2012 to live in her mother’s house with her daughter. In March 2013, she entered Hong Kong alone to work as a foreign domestic helper. In May 2013, she was arrested by the police for the offences of soliciting for an immoral purpose and breach of condition of stay.  She was subsequently referred to the Immigration Department and released on recognizance on 27 July 2013.  On 11 March 2014, she raised a non-refoulement claim.  On 2 May 2014, she gave birth to the 2^nd Applicant, her 2^nd daughter by a man she met in Hong Kong.  She later raised a non-refoulement claim on behalf of the 2^nd Applicant as well.

4.The Applicants’ claims were based on an alleged fear that, if they were to return to the Philippines, they would be harmed or killed by the 1^st Applicant’s husband.  The factual details of the Applicants’ claim were summarized by the Judge in [4] of the CALL-1 Form in HCAL 847/2017 ([2020] HKCFI 853).

DIRECTOR’S DECISIONS

5.Having assessed the Applicants’ non-refoulement claims jointly, the Director rejected their claims by a Notice of Decision dated 26 April 2016 and a Notice of Further Decision dated 10 July 2017. His decisions covered torture risk^[1], BOR 3 risk^[2], persecution risk^[3], and BOR 2 risk[4]. The Director considered that the 1^st Applicant’s husband did not have any real intention to harm or kill her.  Although he had relatives who were respectively a congressman and a senior police officer, the Director’s assessment was that the Philippine government was not involved in any action by the husband against the 1^st Applicant.  The Director considered that state protection was available and internal relocation viable.

THE BOARD’S DECISION

6.Appealing to the Board against the Director’s decisions, the Applicants attended a hearing in person on 11 September 2017.  The Board dismissed the appeal in a decision given on 27 October 2017.  The Board did not accept the 1^st Applicant’s account of her husband’s abuse. She only sustained minor injuries and did not make a report to the police. There was no evidence of any official involvement.  The Board also considered that state protection was available, internal relocation viable, and there were many agencies the Applicants could turn to for help.

THE LEAVE DECISION

7.On 6 November 2017, the applicants filed a Form 86 in HCAL 847/2017 to apply for leave to apply for judicial review of the Board’s decision.  They did not put forward any ground of review in the Form 86.  They did not request an oral hearing and the matter was considered by the Judge on paper.  On 19 May 2020, the Judge refused to grant leave to apply for judicial review.  In the CALL-1 Form (HCAL 847/2017), at [11], the Judge held that:

“11. Despite the fact that the applicants did not submit any grounds of review, I have considered the papers carefully. I have looked in particular inter alia, into the consideration of the suggestion that the applicants may be in danger from the husband if refouled to the Philippines. This was taken into consideration. Further, I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicants, the Adjudicator engaged in a joint endeavour with the 1^st applicant (on behalf of herself and her child) and considered all relevant criteria; gave the applicants a reasonable opportunity to state their case and enquired into that case appropriately. There is no criticism of that determination, which was open to the Adjudicator on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave. I therefore refuse leave for judicial review.”

THE EOT DECISION

8.On 18 August 2020, the applicants applied by summons for an extension of time, as they were out of time by about 3 months, to appeal against the Leave Decision given on 19 May 2020.  At a hearing on 8 October 2020 which the Applicant attended in person, the Judge refused to grant the extension of time sought by the Applicants for the following reasons ([2020] HKCFI 2612):

“6. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. The first applicant, on behalf of them both, accepted this application was late and maintained that she had not received the Form CALL‑1 or Order from the High Court even though she received other mail. Her address on the Form 86 was Room B, 3/F, 123‑125a Lockhart Road. Correspondence on the Court file suggests that this address was being used by the Court and by the Legal Aid Department to correspond with them in 2018. There is no notification of change of address and therefore the Form CALL‑1 and Order were posted to that address but then returned. The address given in the current summons is almost identical in that it is Room B, 3/F, On On Building, 125A Lockhart Road and no explanation has been given as to why she should not have received the Form CALL‑1 and Order. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequences of any delay arising from failing to do so will fall upon the litigant.

7. Even though the Court does accept that the explanation given for the delay is a reasonable one, the court is required to examine whether there is any merit in the applicant’s appeal. Whether there is any such merit will depend upon well‑established legal principles including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The applicants have no submissions in this regard. There is therefore no question for the court as to whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal.

Conclusion

8. The first applicant has now been in Hong Kong since 2013. She has been interacting with various government agencies since that date. The explanation she has offered to this Court, as to why she did not receive the order is not acceptable.

9. In any event, I have considered the underlying application.  It has no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  There was no complaint before the Court as to the decision to refuse leave.  The applicants merely wish the Court of Appeal to consider their situation afresh.  Having considered the length of delay, reason for the delay and underlying merits of the application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.”

APPEAL AGAINST THE EOT DECISION

9.By summons dated 14 January 2021, the Applicants sought leave from this Court to appeal against the EOT Decision.  No grounds of appeal were put forward.  In the 1^st Applicant’s affidavit also of 14 January 2021, she repeated that the appeal was late because she did not receive any letter from the court.

10.In her written submission dated 24 May 2021, the 1^st Applicant repeated that her life was threatened by her husband, that she had a daughter with her boyfriend and that, if returned to her home country, her husband would kill her and her daughter.

DISCUSSION

11.As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408, at [21], although it is technically possible to appeal against a lower court’s decision refusing an extension of time to appeal, it is more appropriate to renew the application for an extension of time before this Court.  The Applicants’ summons of 14 January 2021 is therefore treated as a renewed application to this Court for extension of time to appeal against the Leave Decision given on 19 May 2020.

12.The Court of Appeal in Farrukh Zaib [2020] HKCA 408, at [22] to [24], further held that, in considering whether to extend time to appeal against a decision refusing leave to apply for judicial review, the court will have regard to: (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.  Even if an applicant’s explanation for delay is not accepted, the court would still examine if the intended appeal has merit.  In assessing the merit of the intended appeal, the salient principles are as follows:

(1)   The role of the court in a judicial review is not to provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard will be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board as a primary decision maker.  Assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.As the 2^nd Applicant is a small child, she was and is unlikely to be able to make decisions on how her claim should be presented or make meaningful submissions on her own behalf, and it is necessary to consider her position separately from the 1^st Applicant (Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971, at [46]).

THE POSITION OF THE 1^ST APPLICANT

14.As the Judge held, the 1^st Applicant did not provide any reasonable explanation for the delay of about 3 months in bringing the intended appeal.

15.In any event, the Board rejected the 1^st applicant’s claim because it considered that: (1) the risk of harm was not made out on the evidence; (2) state protection was available; and (3) internal relocation was viable.  These findings were within the province of the Board, and the court would not interfere with them unless there were errors of law or procedural unfairness or irrationality in the Board’s decision.

16.The 1^st Applicant has not identified any errors of law or procedural unfairness or irrationality in the Board’s decision. There is no merit and no prospect of success in her application for leave to apply for judicial review and in her intended appeal against the Judge’s decision refusing leave.

THE POSITION OF THE 2^ND APPLICANT

17.The 2^nd Applicant, being a minor, was/is not legally represented before the Board, the Judge, or this Court.  The requirement in Order 80, r 2 of the RHC has not been complied with.  The Court however has a discretion to treat this as an irregularity without rendering the proceedings a nullity under Order 2, r 1 of the RHC (Zoraydah [2020] HKCA 442 at [8] and Jassal Tajinder Kumar [2021] HKCA 124, at [27]).

18.Although the 2^nd Applicant is a minor and her position should be considered separately from the 1^st Applicant, unlike the situation in Fabio Arlyn Timogan, where there were materials specific to the minors’ claims which had not been advanced or adequately advanced to the Board[5], there is no such material in this case in respect of the 2^nd Applicant.  As observed by the Board, the claim of fear of harm to the 2^nd Applicant was based entirely on the 1^st Applicant’s own belief.

19.Further, the Board made the following findings in respect of the situation of both the 1^st and 2^nd Applicants:

“96. … relocation is a viable option for [the 1^st Applicant] and [the 2^nd Applicant]. According to [Country of Origin Information materials], the Philippines has an estimated population of more than 100 million people and there are 80 provinces in the country. [The 1^st Applicant’s] husband would hardly be able to locate [the 1^st Applicant] and [the 2^nd Applicant].

106.  … with the state protection available, [the 1^st Applicant] and [the 2^nd Applicant] could safely live in other areas in the Philippines away from where her husband lives.  She does not need to worry about his relatives … [The 1^st Applicant] can go to all police stations in other parts of the country.”

20.Although the Board did not in its decision deal with the 2^nd Applicant’s case under a separate section from the 1^st Applicant, this did not mean that her case was not given due consideration.

21.As the Court of Appeal held in Rina Mulyani [2021] HKCA 1156, at [25], if the court is satisfied that the Board achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor‑specific non‑refoulement ground, it is open to the court to conclude that the minor’s intended judicial review of the Board’s decision is without merit.  This Court is satisfied that this is the situation in respect of the 2^nd Applicant’s claim in the present case.

22.For the above reasons, the Applicants’ summons dated 14 January 2021 is dismissed, with the 2^nd Applicant’s lack of legal representation treated as an irregularity without rendering the proceedings a nullity.

The 1^st & 2^nd Applicants, acting in person