Calsiyao Jonalyn Bayubay v. Torture Claims Appeal Board

CACV 440/2024, [2025] HKCA 85

On Appeal From [2024] HKCFI 2808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 440 OF 2024

(ON APPEAL FROM HCAL NO 1537 OF 2024)

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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.This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 15 October 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition (“the Board”) dated 30 November 2023, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 January 2023.

BACKGROUND

2.The Applicant is a national of the Philippines. She last arrived in Hong Kong on 13 February 2019, and had overstayed since 28 February 2019. On 22 July 2022, she surrendered herself to the Immigration Department. On 19 August 2022, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband because she had an affair with a Nepalese man in Hong Kong and subsequently became pregnant. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 26 January 2023 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.The Applicant appealed the Director’s Decision to the Board. She attended a hearing before the Board on 14 July 2023, and gave oral evidence with the assistance of an interpreter in the Ilocano and English languages. On 30 November 2023, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband over her extramarital affair in Hong Kong that caused her to seek non-refoulement protection, that there was no reliable evidence of any real intention of her husband to seriously harm or kill her over their domestic dispute, and that in any event it was a private matter between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.On 9 September 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In her supporting affirmation of the same date, she merely stated that her life would be in danger in her home country, and asked to be allowed to stay in Hong Kong.

6.On 15 October 2024, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review of the Board’s Decision, and dismissed her leave application. The reasons for his decision were set out at §§13-18 of the CALL-1 Form:

“[13] In the Applicant’s case, a delay of more than 6 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 30 November 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

[14] As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, 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 or any merits in her intended application either.

[15] 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…

[16] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real 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…

[17] 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.

[18] For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

THIS APPEAL

7.In her Notice of Appeal filed on 21 October 2024, the Applicant put forward the following ground(s) of appeal: “The High Court did not consider my [judicial review]. Adjudicator did not give me correct decision. His decision is full of wrong. Please grant my leave.” [sic]

8.In her 3-page written submissions lodged on 19 December 2024, the Applicant stated that she disagreed with the decisions of the Director and the Board, and alleged that she believed her case had not been determined fairly. She also complained about not being provided with legal or language assistance, and that she did not fully understand how her case was determined.

9.At the hearing of the present appeal, the Applicant had nothing to add.

DISCUSSION

10.Under Order 53, Rule 4 of the Rules of High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

11.We agree with the Judge that there was a substantial delay of over six months by the Applicant in seeking leave to apply for judicial review in the present case, for which she had not offered any explanation.

12.As for the merits of the appeal, the Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

13.Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

14.The Applicant has failed to identify or show any error in the Judge’s decision refusing to extend time for her to apply for leave to apply for judicial review, or grant leave to apply for judicial review. Her complaints about lack of legal or language assistance are new points which were not raised in her application below. She is not entitled to raise them for the first time in the Court of Appeal. In any event, they have no merit. The Applicant had free legal assistance from the Duty Lawyer Service in relation to the assessment of her non-refoulement claim by the Director. She was provided with language assistance at the hearing of her appeal before the Board. It is well established that a non-refoulement claimant is not entitled to free legal representation or language assistance at all stages of the assessment of her non-refoulement claim. The Applicant’s belief that her case was not determined fairly is a bare assertion without particulars. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

15.The Applicant’s appeal against the Order has no merit, and is dismissed.

The Applicant, acting in person