Re Bahi an Annie Rose Celestial

CAMP 233/2021

[2022] HKCA 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 233 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2301 OF 2018)

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Before:  Hon G Lam and Chow JJA in Court

Date of Judgment:  19 September 2022

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for further extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“Judge”)  dated 19 January 2021[1] refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 5 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 23 June 2017 rejecting the applicant’s non-refoulement claim.

2.On 23 June 2021, Deputy High Court Judge To refused to extend time for the applicant to appeal against the Judge’s decision.[2]

Background

3.The applicant is a national of the Philippines, born in 1979.  She stated she first arrived in Hong Kong on 12 January 2016 but according to her passport and records she came to Hong Kong on 6 April 2016.  She overstayed, and surrendered herself to the Immigration Department on 6 May 2016.  On 11 July 2016 she was interviewed by the Immigration Department when she raised her non-refoulement claim.  She lodged a non-refoulement claim form on 25 May 2017 with assistance from the Duty Lawyer Service.

4.The applicant’s claim as stated in her claim form was based on the fear that, if she returned to the Philippines, she would be harmed or killed by six unknown men as she did not repay her late husband’s debt.  The factual background of her claim was set out at [6] of the Director’s decision dated 23 June 2017.

5.The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By notice of decision dated 23 June 2017 the Director decided against the applicant’s claim.

6.The applicant appealed to the Board against the decision of the Director.  The Board scheduled an oral hearing on 15 June 2018, and served a notice of hearing dated 23 April 2018 by post at the applicant’s last known address.  On 15 June 2018 the applicant was not present for the hearing.  The Board vacated the hearing and gave written notice – by post to the applicant’s last known address – of the Board’s intention to decide the appeal in her absence and informed her that she was entitled to provide the Board with a written explanation of her failure to attend the hearing.  As no response was received from the applicant and since, one can infer, neither the hearing notice nor the subsequent letter had been returned undelivered, the Board proceeded to decide the appeal on the materials available.

7.The Board noted that in the interview on 11 July 2016 the applicant had indicated that she was claiming non-refoulement protection because of a land dispute with one Bashit Abdul who threatened to kill her, but in her non-refoulement claim form she stated that she was threatened by six men who alleged that her husband owed them money. They allegedly killed her husband and threatened to kill her if she did not repay his debt.  Even based on her account in the claim form there were a number of matters the Board wanted to discuss or clarify with the applicant. In the absence of testimony from the applicant the Board concluded it could not ascertain the credibility of the applicant’s assertions in the documents and was not satisfied that the applicant was unable to return to the Philippines for the reasons stated.  In its decision dated 5 October 2018 the Board therefore dismissed the applicant’s appeal.

The Judge’s decisions in the court below

8.On 22 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86.  In the accompanying affirmation she stated that she had never said that she applied for protection because of a land dispute, that she was not present at the hearing on 15 June 2018 because she never received “the letter from the Immigration and from Torture Claims Appeal Board” (presumably referring to the hearing notice), and that the decisions of the Director and the Board were biased and unreasonable.

9.Based on consideration of the documents alone, on 19 January 2021 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [13] – [23] of the Form CALL-1 as follows:

“ 13. In the present case, the Board in fact rejected the applicant’s appeal / petition on the main grounds that there were inconsistencies in the claims of the applicant and the absence of details why she felt there was an ongoing threat. In the absence of these details and her explanations for her inconsistencies, she failed to prove her claim.

14. As explained above, the assessments of evidence 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 applicant stated she never said she applied for non-refoulement because of a land dispute. I have called for the said statement of the applicant dated 11 July 2016 from the Board. She did say so and she signed with the signature of an interpreter in the statement.

16. The applicant claimed that she did not receive the notice of hearing from the Board. The claim was not supported by any explanation or evidence. There was no suggestion that she had changed her address. I find it incredible. In any event it is the duty of a litigant to give the court an address and update it to which correspondence or notice can come to the litigant’s attention in a timely manner. The consequences of any delay arising from failing to do so will fall upon the litigant.

17. The allegation that the Board was biased and unreasonable has no basis in support at all.

18. All the complaints of the applicant are totally unarguable.

19. Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm. It came nowhere near the level of severity required by law to constitute torture or CIDTP. There was no valid reason why her late husband’s creditors would still wish to pursue the applicant after so many years and how they can locate her, if she lives in other places of the Philippines.

20. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22. 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.

   23.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

10.The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A).  On 7 May 2021, she took out a summons to seek an extension of time to appeal against the decision of the Judge.  In the summons and the supporting affidavit, the applicant stated that “I receive the letter today by the Court 05-07-21” and requested for an extension of time as she would face hardship if she went back to her country.  She said in a subsequent letter to the court that she did not receive the Judge’s decision because she had moved to a new address.

11.Deputy High Court Judge To determined the application on paper without an oral hearing.  He did not reject the applicant’s statement that she had moved in January 2021.  However, as the applicant had not notified the court of a change of address, the consequence of any delay occasioned thereby fell on her.  In his decision dated 23 June 2021, he dismissed the application as he considered that there was no valid explanation for the delay and no good ground of appeal.

The renewed application before this Court

12.On 29 June 2021, the applicant took out a summons seeking an extension of time from this court for her to appeal against the decision of the Judge refusing to grant leave for judicial review.  In her summons, the applicant stated the Judge was wrong to accept the Board’s finding, that the Judge had failed to consider all applicable grounds of non-refoulement claims and, in particular, risk of violation of Arts 2 and 22 of the Hong Kong Bill of Rights.  In her supporting affirmation the applicant stated she would face hardship if she returned to her country because her life would be in danger there.

13.On 17 March 2022, out of the concern that the applicant had not had an oral hearing after the Director’s decision, G Lam JA granted an extension of time for the applicant to file a Notice of Appeal within 14 days after the end of the General Adjournment of Proceedings, specifying that that adjournment would provisionally last until 11 April 2022.  The order was sent to the applicant’s address stated in her summons in this Court.

14.The applicant did not file a Notice of Appeal on or before 25 April 2022.  Instead, almost 4 months later, on 18 August 2022, she filed a summons in this Court asking for a further extension of time.  She did not provide any reason for her failure to file a Notice of Appeal pursuant to the extension granted other than that she was a lay person and did not know how to appeal.

15.Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

16.Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  The applicant’s application below for extension of time to appeal was more than 3 months late.  Although she was eventually given an extension of time, she failed to avail of it and file a Notice of Appeal within time.  There was no valid explanation for that failure.  She did not explain how it was that she apparently did not know how to appeal but knew how to apply for extension of time.  The applicant having chosen not to appeal within the extended time, there is in our view no reason why the conclusion of the legal process should be further delayed and time extended again unless she could demonstrate that there would otherwise be a manifest injustice.

17.It is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal.  The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant.  If no viable ground is put forward for reversing the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.In the present case, the Board rejected the applicant’s non-refoulement claim because in the absence of testimony from the applicant, it was not satisfied as to the credibility of her assertions and was not satisfied that she was unable to return to the Philippines for the reasons she stated.  She had asserted that she did not receive the letter from the Board.  However, the Board stated that the notice of hearing had been sent by post to her address.  By virtue of section 37ZV(3)  of the Immigration Ordinance (Cap 115), such notice was presumed, in the absence of evidence to the contrary, to have been served or given and received on the second working day after it was so sent.  Further, the Board gave notice to the applicant that the hearing was vacated and that she could provide an explanation why she had failed to attend.  She did not respond, nor has she said that she did not receive that notice.  There did not appear to be any defect in the address used by the Board, for the applicant plainly received the Board’s decision dated 5 October 2018 and was able to file a Form 86 to challenge it swiftly.  The applicant’s assertion that she did not receive the Board’s letter (without specifying which one)  did not carry conviction.

19.The Judge and Deputy High Court Judge To had given detailed reasons for the decisions.  The applicant’s assertion in her first summons in this Court that the Judge was wrong to accept the Board’s finding and had failed to consider all applicable grounds of non-refoulement claims had no substance.  No ground of appeal with a realistic prospect of success has been advanced.

20.It should also be noted that at the end of the day, the harm that the applicant complained of in her claim for non-refoulement protection was a localised one coming from her husband’s creditor.  The Director found that internal relocation was in any event a viable option.  The Board did not have to deal with this.  The Judge noted that even on the applicant’s evidence, the alleged past ill-treatment was of low intensity and frequency and did not demonstrate a real risk of future harm of the requisite level of severity to warrant non-refoulement protection.  One is certainly not left with an impression that there is a strong claim for protection which has not been sufficiently investigated by the Board.

21.For these reasons we refuse to extend time again.  The applicant’s summons is accordingly dismissed.

The Applicant, unrepresented, acting in person