Re Mogado Haidee Talosig Alias Mogado Haidee Alias Mogado Haidee T. Alias Talosig Haidee

CAMP 587/2021

[2022] HKCA 1282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 587 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1004 OF 2018)

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Before:  Hon Au and G Lam JJA in Court

Date of Judgment: 1 September 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.By a summons filed on 23 December 2021, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 22 April 2021 refusing her application for leave to apply for judicial review ([2021] HKCFI 1118) (“Leave Decision”). By a subsequent judgment dated 12 August 2021, the Deputy Judge also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 2257) (“the EOT Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 29 May 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 22 February 2017 rejecting her claim for non‑refoulement protection (“the Director’s Decision”).

3.Having considered the papers, 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 as a domestic helper and was permitted to remain until 17 February 2017 or two weeks after termination of contract, whichever was earlier.  On 5 August 2016, her contract was prematurely terminated.  On 18 September 2016, she was arrested by the police for overstaying.  She lodged a non-refoulement claim on 28 September 2016 on the basis that if she returned to the Philippines, her life would be endangered due to the physical and mental abuses from her husband.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] ‑ [3] of the Leave Decision.

5.By a Notice of Decision dated 22 February 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.On 7 March 2017, the applicant appealed against the Director’s Decision to the Board.  On 18 December 2017, she attended an oral hearing before the Board and gave evidence.  On 29 May 2018, the Board dismissed her appeal.  The Board considered that the applicant’s alleged abuses were of a matrimonial and private nature.  Having assessed the evidence, the Board found that her life would not be at risk as alleged as there was no evidence that her husband had the intention to kill her or to cause her harm.  The Board also found that state protection and internal relocation would be available to the applicant.  Accordingly, the Board considered that the applicant had failed to substantiate her claim on all applicable grounds and dismissed her appeal.

The Leave Decision

7.On 4 June 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 challenge was put forth by the applicant in her Form 86 or supporting affidavit.

8.By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [8] ‑ [12] of the Leave Decision:

“8. On 4 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely attached copies of the decision and other documents from her hearing bundle before the Board but without putting forward any proper ground for her intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part 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.

12. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

The EOT Decision

9.Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision 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 27 May 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was three weeks late with her intended appeal.  In her summons and supporting affirmation, she alleged that she did not receive the letter from the Court.

11.By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent on the same day to her last reported address which was the same as stated in her summons for extension of time to appeal without being returned as undelivered.  Accordingly, the Deputy Judge was not satisfied that the applicant had provided a good reason for her delay.  The Deputy Judge further considered that the applicant did not have any prospect of success in her intended appeal and refused to extend time for her intended appeal.

The Present Application

12.By a summons and supporting affidavit both filed on 23 December 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  Again, she claimed in her summons that she did not receive the decision letter and failed to appeal in time.

13.Pursuant to the directions made by the Registrar of Civil Appeals on 23 December 2021, the applicant lodged her written submissions on 6 January 2022.  In those submissions, she only repeated the alleged factual basis and procedural history of her non-refoulement claim and requested the Court to grant leave and save her life.

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.The applicant’s delay of three weeks was substantial and the applicant did not provide any good reason for her delay.  Accordingly, given the applicant’s failure to provide good reasons for her delay, 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]; and Re MA [2019] HKCA 1020 at [18].

16.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 the Deputy Judge 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].

17.Nowhere in the summons or supporting affidavit for the present application did the applicant identify any error in the Leave Decision with specific particulars.  General allegations of risk of harm do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As such, the applicant plainly failed to provide any viable ground of appeal.  The intended appeal must fail on this basis alone.

18.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 23 December 2021 is dismissed.

The applicant acting in person