Re Reponoya Arlyn Espinosa

CAMP 488/2022, [2023] HKCA 1035

On Appeal From [2021] HKCFI 1532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 488 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2802 OF 2018)

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J U D G M E N T

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

1.On 28 May 2021, DHCJ To (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap.4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 15 October 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 25 February 2022.

3.On 22 November 2022, the applicant filed her summons in CAMP 488/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.Pursuant to the directions made by the Registrar of Civil Appeals on 22 November 2022, the applicant should lodge her written submissions in support of the Summons on or before 6 December 2022.  However, she failed to do so.  The Registrar further directed that in case the applicant fails to lodge her written submissions as directed, she will be deemed to have abandoned her right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials. 

5.Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.The applicant is a national of the Philippines. She arrived in Hong Kong in June 2009 to take up employment as a foreign domestic helper.  After the pre-mature termination of her employment contract, she did not depart and has overstayed since 13 May 2015.  She surrendered to the Immigration Department and was released on recognizance on 3 August 2015.  On 29 July 2016, she raised a non-refoulement claim alleging that if refouled, she will be harmed or even killed by her abusive husband.  The factual background of this case was succinctly summarised by the Judge at [4] – [12] of the JR Decision ([2021] HKCFI 1532).

7.By a Notice of Decision dated 16 August 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 31 May 2018.  By its decision dated 26 October 2018, the Board dismissed the appeal.  For the reasons set out at [63] to [81], it was accepted that the applicant had been ill-treated and harmed by her husband, but the ill-treatment was limited to punching, pushing and verbal threats.  The Board found that the centrepiece of her evidence was unreliable and contradictory. It did not accept her allegations that her husband had located her in July 2014 in her grandmother’s home and assaulted her, or that he had knocked her down with a vehicle and assaulted her in August 2014.  Further, there is no evidence to suggest that the husband belonged, or was connected, to a political party or that the applicant was ill-treated by any member of a political party.  The Board further found that the applicant’s case only involved domestic violence, and there was no state involvement or acquiescence.  Relevant country of origin information (“COI”) suggests there is reasonable state protection upon her return to her home country.  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds. 

Application for leave to start judicial review

9.On 7 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In her Form, it was stated that she sought leave to apply for judicial review against the Board’s decision dated 16 August 2017.  As the Board’s decision was made on 26 October 2018 which affirmed the Directors’ decision dated 16 August 2017, the court granted leave to the applicant to amend her application accordingly. 

10.The applicant did not advance any ground for seeking relief in her Form 86 or in her supporting affirmation.

The JR Decision

11.The applicant attended an oral hearing on 25 May 2021.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review for the reasons set out in [19] - [20] of the JR Decision:

“19. The Applicant has not advanced any specific ground in support of her application for leave to apply for judicial review. Despite repeated prompting, all that she could say was she did not like the Decision and her life is still in danger if she is returned to the Philippines. She confirmed that she had a fair hearing before the Board and was free to address the Board and make submissions. In essence, she is seeking to challenge the finding of facts of the Board under the guise of judicial review.

20.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness, unreasonableness or irrationality: see Nupur Mst v Director of Immigration^[5].  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.”

Application for extension of time to appeal the JR Decision

12.As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 15 October 2021 for an extension of time to appeal. That was dismissed by the Judge on 25 February 2022.  Hence, the Summons to this court.

Discussion

13.In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

14.As for (1), the applicant was late by more than 4 months between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial.

15.As for (2), the reasons for the delay, the applicant failed to explain her delay in her summons or supporting affirmation.  There is no reason for the substantial delay.

16.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. 

17.It is clear from the Board’s decision that the applicant failed to establish her case on all applicable grounds as her evidence was unreliable and contradictory, and the Board rejected the centrepiece of her case that she was assaulted by her husband in July 2014 and was knocked down by a vehicle driven by her husband in August 2014.  In any event, the claim only involved a private domestic dispute with no state involvement and relevant COI suggested that there is reasonable state protection.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

18.We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

19.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 22 November 2022.

The applicant, unrepresented, acting in person