Samantela Jennifer Abano v. Torture Claims Appeal Board

CAMP 468/2021

[2022] HKCA 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 468 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1993 OF 2018)

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BETWEEN

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Before:  Hon Au and Chow JJA in Court

Date of Written Submissions:  2 November 2021

Date of Judgment:  4 May 2022

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J U D G M E N T

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

1.On 19 October 2021, the Applicant took out a summons with a supporting affidavit applying for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 16 June 2021 refusing to grant the Applicant leave to apply for judicial review.

2.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.The Applicant is a national of the Philippines. She last arrived in Hong Kong on 5 November 2010 with permission to remain as a visitor up to 20 November 2010.  She overstayed, and was arrested by the police on 22 December 2010.  The Applicant was referred to the Immigration Department for investigation, and raised a torture claim on the basis that if she returned to the Philippines, she would be harmed or killed by her abusive father for giving birth to a child out of wedlock.  After her torture claim had been rejected, she sought non-refoulement protection on the same basis.  Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2021] HKCFI 1729).

4.Having previously rejected the Applicant’s claim based on the torture risk[1], by a Notice of Decision dated 5 September 2017, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.The Applicant appealed the Director’s Decision to the Torture Claims Appeal Board (“the Board”).  On 7 September 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board accepted the Applicant’s claim of past abuses by her father and his objection to the Applicant’s relationship with her boyfriend which led to the birth of her illegitimate child, but doubted whether the alleged threats from her father was the cause of her leaving her home country.  The Board found in any event that in the absence of any official involvement, state/police protection would be available to the Applicant upon her return to the Philippines and reasonable internal relocation was open to her to move safely to other areas away from her home district without any risk of being located by her father.  Accordingly, the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

JUDGE’S DECISION

6.On 20 September 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.On 16 June 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§9-11 of Form CALL-1, the Judge stated as follows:

“9. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

10. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.  In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

8.On 30 September 2021, the Judge dismissed the Applicant’s summons taken out on 23 July 2021 for extension of time to appeal.

THIS APPLICATION

9.By a summons taken out on 19 October 2021, the Applicant applied for an extension of time to appeal against the Judge’s decision of 16 June 2021.  In her supporting affidavit dated 19 October 2021, the Applicant stated that she did not receive the court’s letter on time.

10.In her 3-page written submissions dated 2 November 2021, the Applicant repeated that if she returned to the Philippines, she would be harmed or killed by her father for having given birth to an illegitimate child.

DISCUSSION

11.In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

12.The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

13.The court’s 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.

14.The delay of 23 days in the present case is substantial, and the Applicant has not provided any good explanation for her delay.

15.As regards the merits of the Applicant’s intended appeal, the Applicant has failed to identify any specific error in the judgment, or raised any viable ground of appeal against the judgment.  The mere repetition of the factual basis for her non-refoulement claim is not a valid ground of appeal against the judgment.  There is no reasonable, or real, prospect of success in the Applicant’s intended appeal.

DISPOSITION

16.The application for extension of time to appeal is refused, and the Applicant’s summons of 19 October 2021 is dismissed.

The Applicant, acting in person