Re Saldua Dorothy Trifalgar

CAMP 389/2021

[2022] HKCA 229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 389 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1409 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Judgment:  17 February 2022

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge CP Pang (“DHCJ Pang”)  dated 11 November 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 2733). An earlier application for extension of time to appeal was refused by Deputy High Court Judge KW Lung (“DHCJ Lung”)  on 14 September 2021 (“the EOT Decision”)  ([2021] HKCFI 2636).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 12 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 5 July 2017 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

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

Background

4.The applicant is a national of the Philippines.  She last arrived in Hong Kong in March 2011 as a domestic helper.  Her employment contract was prematurely terminated in June 2011 and she overstayed in Hong Kong since 8 July 2011.  On 8 December 2015, she surrendered to the Immigration Department.  She lodged a non-refoulement claim by way of written representation dated 8 December 2015 on the basis that she was in fear of being targeted, tortured or even killed by the terrorist groups of the New People’s Army if she returned to the Philippines.  Details of the applicant’s claim were summarised by DHCJ Pang at [2] - [3] of the Leave Decision.

5.By a Notice of Decision dated 5 July 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.The applicant then appealed against the Director’s Decision to the Board.  She attended and gave evidence at an oral hearing before the Board on 11 May 2018.  The Board dismissed her appeal on 12 July 2018 and confirmed the Director’s Decision.  The Board found that there were significant inconsistencies and implausibility in the applicant’s evidence and that the applicant was dishonest and unreliable and not a genuine claimant. Having assessed the evidence, the Board considered that the applicant failed to substantiate her case on the applicable grounds.  The Board also considered that state protection and internal relocation were available to the applicant. Accordingly, the Board dismissed her appeal.

The Leave Decision

7.On 17 July 2018, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision.  However, no ground of review was provided by the applicant in her Form 86 and in her supporting affidavit, she only stated that she her life was under threat in her country.  As no request for oral hearing was made by the applicant, her application was considered on paper.

8.By the Leave Decision, DHCJ Pang dismissed her application for leave to apply for judicial review for the following reasons:

“11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

12. When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on discussing the latter’s decision.

13. In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it disbelieved the Applicant and rejected the account of primary facts based on the major inconsistencies and implausibility in the Applicant’s evidence. In any event, state protection and internal relocation are available to her. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

14. As explained above, the assessments of evidence, state protection and internal relocation and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

15. The Form 86 and affirmation did not set out any particulars to demonstrate why the Board was unfair or unreasonable in the public law sense. In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16. Indeed, the Applicant’s claims are too far-fetched and unconvincing. Her conduct in Hong Kong by her delay in lodging the claim for protection damaged her credibility and was inconsistent with someone in genuine fear for her life and safety.

17. Even if one gives her account the most favourable interpretation, the alleged past experiences demonstrate no real risk of future harm.

18. There cannot be any criticism of the Board’s determination which is eminently reasonable.

19. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

20.  For the reasons given, there is no prospect of success at all in the Applicant’s intended application.  Accordingly, I refuse to grant leave to apply for judicial review.”

The EOT Decision

9.Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against DHCJ Pang’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.On 17 December 2020, the applicant filed a summons together with a supporting affidavit for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, she was 22 days late with her intended appeal.  In her supporting affidavit, she claimed that she was late because she did not receive the letter from the Court.

11.By the EOT Decision, DHCJ Lung noted that the applicant failed to raise any valid ground to say that the Board’s Decision or the Leave Decision was in error.  Accordingly, as the applicant was unable to demonstrate any reasonable prospect of success in her intended appeal, DHCJ Lung refused her application for extension of time to appeal.

The Present Application

12.By a summons and supporting affidavit both filed on 14 September 2021, the applicant reapplied for extension of time to appeal.  No ground of appeal or reason for her delay was stated in the summons.  In her supporting affidavit, she only claimed that:

“I am writing in response to the letter from the High Court (dated 14 Sept 2021). I did not receive any letter early regarding my case. I would like to review the decision made over my case in disregard on my dangerous situation and give me an extension to file on judicial review.” (sic)

13.Pursuant to the directions given by the Registrar of Civil Appeals on 14 September 2021, the applicant lodged her written submissions on 21 September 2021.  In her submissions, she referred to various Country of Origin Information and contended that there were cases on extrajudicial killings, impunity and violations of human rights and that the possibility of relocation was a myth.  She further asserted that clashes between the government forces and the New People’s Army continued.

Discussion

14.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.We consider that the applicant’s delay over 22 days as substantial and that the applicant has failed to provide any cogent explanation for her delay.  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 occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9] and Re Ram Ishver Dass [2019] HKCA 27 at [16].

16.As such, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

17.The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that DHCJ Pang made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.Nowhere in the summons, supporting affidavit or written submissions for the present application did the applicant identify any proper ground of appeal or error in the Leave Decision.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

19.In any event, the applicant’s general and bare assertions on her fear if refouled to her home country do not constitute valid grounds of appeal.  Also, as repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

20.For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 14 September 2021 dismissed.

The applicant acting in person