Emma Loizaga Llanes Alias Llanes Emma L v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CAMP 98/2021

[2021] HKCA 1754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 98 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2630 OF 2018)

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Before: Hon Kwan VP and G Lam JA in Court

Date of Written Submission: 20 May 2021

Date of Judgment: 26 November 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 22 May 2020, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against 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.On 18 March 2021, Deputy High Court Judge C P Pang refused to grant extension of time to appeal against the said decision as the delay is not justifiable and the applicant failed to show she had any prospect of success in her intended appeal^[2].

3.On 30 March 2021, the applicant filed the present summons indicating that she wanted to seek leave to appeal out of time against the order dated 18 March 2021.  This application should be treated as a renewed application for leave to appeal out of time against the judge's decision of 22 May 2020: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.The applicant is a national of the Philippines.  She is 58 years old. She came to Hong Kong on 10 November 1992 to work as a domestic helper.  Her employment contract was terminated on 24 January 1997 and she subsequently overstayed. She gave birth to her daughter on 30 July 1999 and surrendered to the Immigration Department with her daughter on 27 January 2014.  She lodged a non-refoulement claim on 21 January 2015 on the basis that she will be harmed or killed by her ex-boyfriend and/or people from the New People’s Army (“NPA”) as she had refused to marry her ex-boyfriend and the NPA wished to take over her family farmland.

5.By a Notice of Decision dated 31 January 2018, the Director rejected the applicant’s claim on all applicable grounds including torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6]. 

6.The applicant appealed against the Director’s decision to the Board. The Board conducted a hearing on 5 October 2018.  The Board considered that the applicant invented the entire case that she had an ex-boyfriend who was an NPA member and that the NPA had killed her family members.  It found that the applicant did not seem to know anything about her ex-boyfriend and there are significant inconsistencies in her evidence.  Furthermore, she has never experienced any harm in the past and the Board was not convinced that she would face a real risk of harm upon returning to the Philippines.  The Board also considered that the alleged problems have nothing to do with race, religion, nationality, membership of a particular social group or political opinion. Therefore the Board concluded that the applicant is not entitled to non-refoulement protection and dismissed the appeal on 26 October 2018.

The judge’s decision

7.On 22 November 2018, the applicant applied for leave to apply for judicial review against the decisions of the Director and the Board.  The application was refused by DHCJ Lung on 22 May 2020.  The judge held that her ground regarding the failure to conduct sufficient inquiry into the relevant country of origin conditions is not supported by evidence and there is no factual basis in support of her claim.  Hence, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 22 May 2020.

Grounds of appeal

8.The applicant stated in her written submissions that the Director and the Board failed to make sufficient inquiries into the country of origin conditions and adopted a passive approach in contravention of the high standards of fairness.

Analysis

9.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.

10.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 judge’s order was made on 22 May 2020.  The applicant took out summons in the court below on 28 July 2020.  She was late for more than 1.5 months.  The delay is not insubstantial. 

11.The applicant explained that she was late as she had not received the judgment^[7]. This is not a justifiable reason for the delay as the applicant has the duty 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). 

12.As the applicant’s delay is inexcusable, she must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.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.

14.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.

15.In the present case, the applicant’s grounds are just bare assertions without particulars or elaboration.  In particular, she failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Both the Board and the judge provided detailed explanations in their respective decisions which are well founded.  The applicant failed to adduce any evidence to refute their decisions.

16.For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We refuse to exercise our discretion to grant leave to appeal out of time against the decision of 22 May 2020 and dismiss the summons filed on 30 March 2021.

The Applicant, acting in person

[1] [2020] HKCFI 886

[2] [2021] HKCFI 540

[3] As defined in Part VIIC of the Immigration Ordinance (Cap.115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] 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).

[5] 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).

[6] 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.

[7] The Call-1 form sent to the applicant by post was returned to the court by the post office on 1 June 2020, contrary to what was stated in §5 of the decision of DHCP C P Pang.