Aligo Alma Carlos v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 551/2022, [2023] HKCA 746

On appeal from [2022] HKCFI 2879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 551 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2292 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.On 20 September 2022, Deputy High Court Judge K W Lung dismissed the application of the applicant for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim[1].

2.On 31 October 2022, the applicant filed a summons to apply for extension of time to appeal against that decision with the Court of First Instance. The summons was dismissed by the judge on 24 November 2022[2].

3.On 29 December 2022, the applicant filed the present summons seeking to appeal against the judge’s decision. This application should be treated as a renewed application for extension of time to appeal against the judge’s decision of 20 September 2022 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.The applicant is a national of the Philippines. She entered Hong Kong to work as a foreign domestic helper in 2015. Her employment contract was terminated prematurely on 22 February 2016. She did not leave Hong Kong and subsequently overstayed. She surrendered to the Immigration Department on 31 May 2016. On 23 August 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband as she has an affair with another man.

The decisions of the Director and the Board

5.By a Notice of Decision dated 19 March 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 11 July 2018. In light of the significant inconsistencies in the applicant’s evidence, the Board did not accept her claim that her husband had threatened her. Having considered the applicant’s claims and the totality of the available evidence, the Board held there is no substantial ground to believe that the applicant would face any risk of harm under the applicable grounds upon her return to the Philippines. Therefore, the Board dismissed the appeal on 15 October 2018.

The intended judicial review

7.On 22 October 2018, the applicant filed a Form 86 and an affirmation in HCAL 2292/2018 to seek leave to bring judicial review against the Board’s decision. She stated that she would not like to go back to her home country, she is not satisfied with the Director’s decision and her life is in danger in her country.

The judge’s decision

8.DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant does not have any valid ground to challenge the Board’s decision. The judge considered there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the intended judicial review, the judge refused the leave application on 20 September 2022.

Grounds of intended appeal

9.The applicant stated her grounds of appeal in the written submissions which may be summarised as follows:

(1)  The judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Board;

(2)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker but the judge reviewed the matter lightly;

(3)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the adjudicator were required to give reasons justifying their decisions;

(4)  The applicant’s problems are very severe in her home country and she has submitted all the proofs but the judge has not applied greater care and disappointed the applicant;

(5)  The judge did not scrutinise the matters in her summons for extension of time to appeal and the judgment was wrong;

(6)  The adjudicator has failed to give sufficient chance for the applicant to arrange relevant evidence to support her non-refoulement claims as well as her appeal;

(7)  The applicant will face hardship if she returns to her home country and the Board has significantly relied on the source of news which is not officially recognised, or is simply hearsay.

Analysis and disposition

10.In considering whether to extend time to appeal against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 20 September 2022. The applicant was late by 26 days when she took out the summons at the court below on 31 October 2022. She explained that she did not receive the judgment but was only informed of the court’s decision by the Immigration officer on 31 October 2022.

12.The applicant had provided the court with her new address by a letter dated 16 November 2020. The court sent a letter to her on 26 July 2022 informing her that the judgment will be ready for handing down as soon as possible. The judge’s decision was then sent to the applicant’s address by post on 20 September 2022. It is noted that the applicant stated another new address in her application filed on 31 October 2022 but she has not filed any notice of change of address for service with the court. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Therefore, the applicant’s explanation for the delay is not justifiable.

13.Where a delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

14.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.The applicant had not raised the ground concerning the Board’s failure to give her sufficient chance to arrange relevant evidence to support her claims in her previous applications at the court below. In any event, up till the present, she has failed to show she has any evidence which can support her claims and/or refute the Board’s findings.

16.The rest of the applicant’s grounds are just bare assertions without evidence in support or contrary to the facts. In particular, the Director and the Board had given detailed explanations in their decisions. The applicant also failed to identify any particular error in the judge’s decision with sufficient particulars or elaboration.

17.For the above reasons, there is no prospect of success, let alone real prospect of success, in the intended appeal. We refuse to exercise our discretion to extend time to pursue what appears to be a hopeless appeal. We therefore dismiss the summons filed on 29 December 2022.

The Applicant, acting in person