Re Doyaoen Josephine Biba

CACV 519/2024, [2025] HKCA 482

On appeal from [2024] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 519 OF 2024

(ON APPEAL FROM HCAL 2202/2019)

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 29 November 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) (1) dated 20 April 2017 (“the Board’s 1^st Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 7 September 2015 (“the Director’s 1^st Decision”) rejecting the applicant’s non-refoulement claim based on the torture risk^[1], the BOR 3 risk^[2], and the persecution risk^[3]; and (2) dated 18 July 2019 (“the Board’s 2^nd Decision”) refusing the applicant’s late filing of a notice of appeal/petition against the Director’s decision dated 15 May 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim based on the BOR 2 risk^[4].

Background

2.The applicant is a national of the Philippines. She last arrived in Hong Kong on 22 June 2009 as a visitor, but she overstayed and was arrested by the police on 30 July 2013.  Thereafter, she lodged a non‑refoulement claim on 13 May 2014 by way of written representation.

3.The applicant’s non-refoulement claim was based on a fear, should she be refouled, of being harmed or killed by a woman who loaned money to her friend, as the applicant was the guarantor of such loan. The details of the applicant’s claim have been summarised by the Judge at [5] to [8] of the Judge’s decision (“the CALL-1 Form”)[5].

4.By a Notice of Decision dated 7 September 2015 (i.e. the Director’s 1^st Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk, the BOR 3 risk and the persecution risk.

5.The applicant appealed to the Board.  After considering the papers filed by the applicant, the Board dismissed the appeal on 20 April 2017 (i.e. the Board’s 1^st Decision).  The Board’s 1^st Decision covered the torture risk, the BOR 3 risk and the persecution risk.  The Board took the view that the dispute concerning the loan amounted to a private dispute, the risk from which fell short of the level of severity required.  In any event, the Board considered that state protection and suitable options of internal relocation were available to the applicant to minimise the risk of harm, if any.

6.On 25 April 2017, the Director (by letter) invited the applicant to submit additional facts, if any, in support of her non-refoulement claim based on the BOR 2 risk.  As the applicant did not do so, the Director proceeded to determine her claim based on the BOR 2 risk on the documents already filed, and by the decision dated 15 May 2017 (i.e. the Director’s 2^nd Decision), dismissed the applicant’s claim based on the BOR 2 risk.

7.The applicant subsequently sought to appeal against the Director’s 2^nd Decision to the Board by filing a notice of appeal/petition out of time on 4 July 2017.  The Board held that there existed no special circumstances by virtue of which it would be unjust not to allow the late filing of the notice of appeal/petition.  By the Board’s 2^nd Decision, the applicant’s late filing of her appeal was refused.

The Judge’s decision

8.The applicant filed a Form 86 on 2 August 2019 seeking to judicially review both the Board’s 1^st and 2^nd Decisions[6] but did not set out any grounds for judicial review.

9.In the applicant’s supporting affirmation, she essentially complained that she was prejudiced in the processing of her claim due to a lack of language assistance and legal representation. 

10.After summarizing the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [21] to [29] of the CALL-1 Form:

“21. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she understood the Board’s Decisions. She said that if she has to relocate, she has to leave her property in Baggio.

23. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …Assessment of evidence and COI materials and 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.’

24. As to the applicant’s grounds to challenge the Board’s Decisions, her failure of updating the Director and the Board of her new address is her own mistake, for which she has to take the responsibility as the Court of Appeal in Re: Zamora Rowel Espiritu [2022] HKCA 1883, Hon Barma JA and Au JA, 30 December 2022 held:

‘18. In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.’

25. The Board has no duty to refer the Board’s Decision to the Duty Lawyer Service. As the applicant said, her duty lawyer had advised her that her claim had no merit. This ground fails.

26. The applicant is not entitled to free legal representation at all times, as the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

‘22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

27. The applicant has not stated what prejudice she had suffered for no hearing by the Board. Section 12 of Schedule 1A of the Immigration Ordinance, Cap. 115 provides:

‘Determination of appeal without a hearing

The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.’

28. Judging from the facts as alleged by the applicant, it is logical for the Board to make the decision of determining the issues without a hearing because such facts, even if accepted, do not give the applicant any reason for non-refoulement protection under the law and Convention. The applicant has raised no valid reason to challenge the Board’s Decisions.

DISPOSITION

29. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss her application.”

Grounds for appeal

11.In the Notice of Appeal filed on 2 December 2024, the applicant stated that she would face hardship should she be refouled, and that the Board had wrongfully relied on “sources of news which is not officially recognised”, cases which are “outdated” and information lacking in credible sources. 

12.In breach of the directions given by the Registrar of Civil Appeals, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

13.The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

14.The hearing date on 7 May 2025 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

(i) Intended judicial review against the Board’s 1^st Decision

15.The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

16.As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge found no basis for intervening.  In our view, he was clearly correct to do so.

17.As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  In any event, we have anxiously scrutinised the Board’s 1^st Decision and the Judge’s decision in this respect, and are satisfied that they are both in order.

(ii) Intended judicial review against the Board’s 2^nd Decision

18.Section 37ZT(3) of the Immigration Ordinance (Cap 115) (“the Ordinance”) provides that the Board may allow the late filing of the NoA if the applicant provided sufficient evidence in writing to satisfy the Board that (i) he had exercised all due diligence to file the NoA within the prescribed time; and (ii) his failure to do so was due to circumstances beyond his control.

19.We have considered the Board’s 2^nd Decision and have no quarrel with the Board’s dissatisfaction with the applicant’s lack of adequate explanation for the late filing of her notice of appeal/petition against the Director’s 2^nd Decision.  However, regardless of procedural breaches committed by the applicant and the lack of explanation therefor, it is incumbent on the Board, in exercise of its discretion to extend time for appeal, to consider the merits of the applicant’s claim.  See Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430; Re Castillo Raquel Adona & anor [2022] HKCA 1053. 

20.It is clear that the Board, in reaching its 2^nd Decision (which concerned the applicant’s intended appeal against the Director’s 2^nd Decision, which was the rejection of his claim based on the BOR 2 risk), did not, as it was required to, consider the merits of the applicant’s intended appeal.

21.However, for the following reasons, we are of the view that in the circumstances of this case, the Judge was nonetheless correct in refusing to grant the applicant leave to apply for judicial review against the Board’s 2^nd Decision.

22.First, we reiterate that an appeal (or an intended appeal) against a refusal of leave to apply for judicial review is not the occasion for this court to examine the decision of the Board afresh.  This court is only concerned with the decision of the Judge at first instance, and shall interfere with such decision only if the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Qasim Ali at [18].

23.Re Qasim Ali was a case where the Board did not consider the merits of the applicant’s intended appeal, and in which this court (Yeung Acting CJHC and Lisa Wong J) held that it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious (see [25]).  The Director’s decision in that case had covered all four applicable grounds for non-refoulement protection (see [5]), which meant that when the Board refused to allow the applicant in that case to file the notice of appeal against the Director’s decision out of time, it had neglected to consider the merits of the applicant’s non-refoulement claim under any of the applicable grounds.

24.On the facts of another decision of this court (Chu JA, as Chu VP then was, and B Chu J), Re Castillo Raquel Adona (in which Re Qasim Ali was cited at [23]), the applicants failed to return their completed non-refoulement claim forms (“NCF”) to the Director, which resulted in the Director treating their claims as withdrawn, who ultimately decided that their claims should not be re-opened (see [5]-[8]).  The applicants filed their notice of appeal (against the Director’s decision not to re-open their claims) with the Board late, and leave to file out of time was likewise refused by the Board (see [9]-[12]).  There was also no dispute that the Board did not consider the merits of the applicants’ intended appeal (at [24]).  This court held that although the Board had failed to consider the merits of the appeal pursuant to Re Qasim Ali and section 37ZT(3) of the Ordinance, had the Board undertaken this exercise, it would still have concluded that the intended appeal had no merits by reason of the applicants’ failure to submit their completed (or in fact, any form of an) NCF to the Director (see [21]‑[24]).

25.Turning back to the present case, the applicant had duly submitted her NCF (see Director’s 1^st Decision at [6]) containing her version of events in support of her claims, albeit only pertaining to the BOR 3, the torture and the persecution risks. 

26.Although the applicant by her Form 86 sought to disturb the findings and conclusions in the Board’s 1^st Decision in these judicial review proceedings, for the reasons stated above, we have held above that the Board’s 1^st Decision, as well as the Judge’s conclusions on it, were in order and that there were no viable grounds of appeal against them.

27.Further, unlike the situation in Re Qasim Ali, by refusing to allow the applicant to file the NoA against the Board’s 2^nd Decision out of time, the Board in this case by its 2^nd Decision had in substance only barred the applicant’s intended appeal regarding her claim based on the BOR 2 risk, as opposed to all applicable grounds.  Following from this, it is pertinent to note that in Re Kulwinder Kaur [2022] HKCA 48 at [59], this court (Chu JA, as Chu VP then was, and Barma and Au JJA) acknowledged there was some force in the argument that issues under the BOR 2 risk are not separable from those under the BOR 3 risk.  This essentially meant that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”.

28.We therefore take the view that even had the Board considered the merits of the applicant’s intended appeal against the Director’s 2^nd Decision, by reason of the unchallengeable conclusions reached by the Director in his 1^st Decision regarding the BOR 3 risk, it would have concluded that the applicant’s intended appeal had no merit.  See Re Castillo Raquel Adona at [24] and Re Kulwinder Kaur at [58] and [59].  It cannot be said, for instance, that the applicant’s claim under the BOR 2 risk would have been arguable had the Board specifically put its mind to the merits of the intended appeal against the Director’s 2^nd Decision (concerning only the BOR 2 risk), given that the Director (and the Board) had found no basis for the applicant’s fear of harm under the BOR 3 risk.

29.In any event, the applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.

30.For completeness, we should mention that we are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non‑refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

31.Further, the applicant’s complaint of prejudice by reason of her lack of proficiency in English is unfounded and of little or no merit.  We note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

Disposition

32.It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

33.There is therefore no merit in the appeal and we dismiss the appeal accordingly.