Re Racimo Melanie Narciso and Another

CAMP 487/2021

[2022] HKCA 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 487 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2427/2018)

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Before:  Hon Chu JA and Barma JA in Court

Date of Judgment:  22 April 2022

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of DHCJ K W Lung (“the Judge”) dated 28 July 2020 refusing leave for the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 16 October 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 7 February 2018 (“the Director’s Decision”) which dismissed their non-refoulement claims.

Background

2.The applicants are nationals of the Philippines, and they are mother and son.  The 1^st applicant arrived in Hong Kong on 8 August 2010 as a domestic helper, but she had overstayed and was arrested on 10 January 2012.  On 28 January 2006, she gave birth to the 2^nd applicant in Hong Kong, out of wedlock.  The applicants thereafter lodged their non-refoulement claims on 11 July 2013.

3.The applicants’ claims were based on a fear of being harmed or killed by the wife of the 2^nd applicant’s father (“Susan”). The details of the applicants’ claims have been summarised by the Judge at [8] to [11] of his decision (“the CALL‑1 Form”)[1].

4.By a Notice of Decision dated 7 February 2018, the Director decided against the applicants’ claims.  The Director’s Decision covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4] (the applicants’ claims regarding the risk of torture under Part VIIC of the Immigration Ordinance, Cap.115 were previously rejected and thus not re-opened).

5.The applicants appealed to the Board.  After a hearing on 15 August 2018, at which the applicants both gave oral evidence and were legally represented by the Duty Lawyer Service, the Board dismissed the appeal on 16 October 2018.  In gist, the 1^st applicant’s claim is that she would be harmed or killed by Susan if she returned to the Philippines.  On behalf of the 2^nd applicant, the 1^st applicant submitted that he was born in Hong Kong, was attending a local school, knows nothing about the Philippines and does not speak Tagalog or Ilocano.  She submitted that the 2^nd applicant would not be able to adapt to life in the Philippines.  Further, the applicants submitted that as the 1^st applicant’s parents and siblings have passed away, they would have nowhere to live in the Philippines (see [49]-51) of the Board’s Decision).

6.The Board rejected the 1^st applicant’s claims regarding threats from Susan, which it did not find to be credible or established by reason of inconsistencies in her evidence (see [53]-[65] of the Board’s Decision).  The Board, although sympathetic, did not accept the 2^nd applicant’s fears of settling into life in the Philippines.  In fact, the Board found that the 2^nd applicant’s abilities (in the English language and general academics) will enable him to meet the challenges of learning a new language (Tagalog) and assimilate into a new culture (see [66]-[80]).  The Board also concluded that there is no real risk of harm faced by the applicants should they return to the Philippines.

The Judge’s decision

7.The applicants filed a Form 86 on 1 November 2018 (as amended by the Judge: see [3] of his decision dated 28 July 2020) seeking to judicially review the Board’s Decision without setting out any grounds of review.  In the 1^st applicant’s supporting affidavit, she simply asked the Judge to review the Board’s Decision.  

8.After summarizing the facts and background of the case and giving due consideration to the Board’s Decision and the Director’s Decision, the Judge refused to grant leave to the applicants to apply for judicial review.  The Judge gave the following reasons in refusing to grant leave for judicial review at [17] to [24] of the CALL‑1 Form:

“17.   The applicants filed Form 86 dated 1 November 2018 for leave to apply for judicial review of the Board’s Decision.

18.  In her affidavit in support of their application, she asked the Court to review their case. She did not set out any errors committed by the Board in the assessment of their case.

DISCUSSION

19.  The applicants appeared before me. The first applicant said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. She was legally represented before the Board in any event.

20.  The second applicant had submitted a hand-written letter to this Court for consideration. In his letter, he repeated the grounds in support of his mother’s application. He further said that he would be under immense stress and he would not be able to protect his mother. He could not sleep well and he was anxious for his life and his future. He used to excel in his study, but his academic performance had been affected. Also, his hands shook because of nervousness. He asked the Court to review their application.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) …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.’

22.  Having considered the Board’s Decision with vigorous examination and anxious scrutiny, I find nothing amiss in the Board’s evaluation of the evidence and assessment of the matter.

23.  The applicants fail to show that they have or either of them individually has any reasonable prospect of success in their proposed judicial review.

CONCLUSION

24.  Since the applicants’ application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant them leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.”

The present application for extension of time to appeal

9.According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicants at their last known address at Sha Tau Kwok Road (as stated in their Form 86) on 28 July 2020.  This letter was not returned undelivered.  

10.Pursuant to Order 53 rule 3(4), the applicants had 14 days to lodge an appeal.  The applicants did not file a Notice of Appeal within 14 days of the Judge’s decision dated 28 July 2020.

11.The applicants took out a summons in the Court of First Instance on 11 September 2020 seeking extension of time to appeal.  In the supporting affirmation, the 1^st applicant stated, inter alia, that she did not receive the CALL-1 Form.

12.The applicant’s application to appeal out of time was dismissed by the Judge on 11 August 2021[5].

13.By a summons filed on 28 October 2021, the applicants renewed their application for an extension of time to appeal before this court.  In the summons, the applicants stated that “my summons was dismissed 11^th of August 2021 and I never found any error in this decision”.  In the supporting affidavit and the exhibits the applicants repeated that they did not receive the CALL-1 Form in time, that the 1^st applicant’s family members have passed away and that the 2^nd applicant would find it difficult to settle into life in the Philippines.

14.Meanwhile, on 23 November 2021, the 1^st applicant made an application for legal aid on behalf of the 2^nd applicant.  On 9 December 2021, the said application was refused by the Director of Legal Aid.

15.In breach of the directions made by the Registrar of Civil Appeals, the applicants lodged their written submissions late, on 31 December 2021.  In view of the short delay, we have proceeded to consider the submissions, in which they simply stated that they “have more document to submit”, without specifying the nature or relevance of these documents.  Nor were copies of these “documents” attached to their submissions.

Discussion

16.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicants’ application on the basis of the documents filed.

17.The applicants have proffered no reason or explanation for the delay in bringing the intended appeal.  The letter which was sent to their last known address, enclosing the CALL-1 Form, was not returned undelivered in the post.  In the circumstances, we are of the view that there is no reasonable explanation for the applicants’ delay in bringing the intended appeal.  However, as we have noted the delay in this case was a very short one.

18.We have therefore proceeded to consider the merits of the intended appeal.

19.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

20.The applicants did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicants have not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

21.In particular, the 1^st applicant’s much-repeated bare assertion that she would be in danger, harmed or even killed if she returned to the Philippines is inconsistent with the findings of both the Director and the Board.  As to the 1^st applicant’s claim that by reason of the deaths of all her relatives, she would have nowhere to live in the Philippines, the Board as a matter of fact did not accept the 1^st applicant’s claim that her mother had passed away (see [64] of the Board’s Decision).

22.It is necessary for this court to consider the position of the 2^nd applicant separately, as he is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

23.Legal aid for the 2^nd applicant has been refused.  Notwithstanding this, the application of the 2^nd applicant may be allowed to stand if the court is satisfied that his claim had not been properly assessed by the Director and the Board.

24.The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(1)  non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(2)  even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)  ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

25.It is clear from the analysis set out in the decisions of the Director and the Board that they had sufficiently and specifically considered the 2^nd applicant’s claim, which is the risk of him facing harm from Susan and his difficulties with settling into a new life in the Philippines (see the Board’s Decision at [66]-[80]; the Director’s Decision at [28.5]).  In particular, the Board had specifically considered the position of the 2^nd applicant with reference to his proven academic and linguistic abilities.  Taking into account the fact that English is very widely spoken in the Philippines and that English is the language of instruction from grade 4 in all schools there, the 2^nd applicant appears to be well-equipped to adjust to his new life (see [68]-[70] of the Board’s Decision).

26.Furthermore, there is nothing to indicate that the merits of the 2^nd applicant’s claim or any underlying matter that may support minor‑specific non-refoulement grounds had not been adequately explored before the Judge due to the lack of legal representation.  It must be noted that the applicants were legally represented at the hearing before the Board.

27.More importantly, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)]. 

28.The applicants have failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

29.For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 28 October 2021 is accordingly dismissed.

The applicants acting in person