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CARAMAT VIRGINIA LOBEBAN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

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[2020] HKCA 668-EN-2020-08-06

CARAMAT VIRGINIA LOBEBAN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

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CAMP 265 /2019

[2020] HKCA 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 745 OF 2017)

________________________

BETWEEN
	Caramat Virginia Lobeban	1^st Applicant
	Iqbal Syeda Rabika Qaisar (a minor)	2^nd Applicant
	Iqbal Mohammad Usama Qaisar (a minor)	3^rd Applicant
	Iqbal Syed Umar Qaisar (a minor)	4^th Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before:

Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission:	22 July 2020
Date of Judgment:	6 August 2020

________________________

J U D G M E N T

________________________

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

1. This is the applicants’ application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 20 May 2020 ([2020] HKCA 276) refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam on 23 August 2018^{^[1]} dismissing their application for leave to apply for judicial review concerning their non‑refoulement claim. The 1^st applicant is a national of the Philippines, the 2^nd to 4^th applicants are her minor children. She claimed that her brother would harm or kill them because she has converted to Islam and her children are also Muslims. This Notice of Motion was filed on 8 July 2020, with a supporting affirmation of the 1^st applicant.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 9 July 2020 that the Notice of Motion shall be determined on paper only without an oral hearing. The 1^st applicant lodged a written submission on behalf of all the applicants on 22 July 2020. Having considered the papers, we think it appropriate to determine this application on paper and will do so accordingly.

Procedural history

3. The applicants took out a summons in the court below to seek leave to appeal against the decision of DHCJ Josiah Lam out of time. Their application was late by more than ten months exclusive of the intervening summer vacation. It was refused by Deputy High Court Judge Bruno Chan on 14 October 2019^{^[2]}. They renewed their application to this court for extension of time to appeal on 21 October 2019.

4. On 20 May 2020, this court refused to extend time to appeal against the decision of DHCJ Josiah Lam, having regard to the substantial delay, which we found inexcusable, and the lack of merits of the intended appeal.

The proposed grounds of appeal

5. In the Notice of Motion and the 1^st applicant’s supporting affirmation filed on 8 July 2020, the applicants stated that the appeal was late because they changed their address and their landlord sent back the judgment to the court so they did not know that the judgment was handed down^{^[3]}.

6. The grounds stated in the written submission lodged by the 1^st applicant on behalf of all the applicants may be summarized as follows:

(1) In refusing to grant the extension of time, the court failed to consider that even a local may not understand the legal procedures and the time to submit, let alone someone like the applicants who are foreigners and not well-educated.
(2) In the Philippines, a Catholic country, the conversion from Catholicism to Islam could be considered as apostasy. It is common for a Muslim to be discriminated and a Muslim can also attract abduction by Muslim terrorist group for recruiting young Muslims to fight in the Philippines.
(3) The government in the Philippines has proposed a Muslim ID to single out Muslims in the name of counterterrorism. Such act does not only violate human rights but also affects the way Muslims are treated and they will be targeted with life threats.
(4) The Director’s assessment is a wrong decision as he failed to look into a case in context and what has been changing inside a particular country. Such culturally insensitive judgment is an act of procedural error.

Discussion and disposition

7. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9. The filing of this Notice of Motion was three weeks late. Good grounds have to be shown by the applicants for the court to grant them an extension of time. The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

10. The applicants explained that the delay was due to their change of address so they did not receive the judgment of the Court of Appeal. They have not filed with the court any notice of change of address for service. It is the duty of litigants to give to the court a correct address at all times so that correspondence or notice from the court can come to their 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). Hence, the applicants’ explanation would not justify their delay in filing the Notice of Motion. We are not inclined to grant an extension of time to file the Notice of Motion.

11. In any event, the applicants have not shown any or any sufficient merits in their intended application for leave to appeal to the Court of Final Appeal. They have not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing their application. They have also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). So we would have dismissed the Notice of Motion in any event.

12. In light of the above, it is not necessary to resolve whether an appeal lies to the Court of Final Appeal from the Court of Appeal’s refusal of an extension of time to appeal from the decision of the Court of First Instance refusing leave to apply for judicial review. A line of authority suggests that appeals against such a refusal of time by the Court of Appeal are not susceptible to further appeal and another authority is to the contrary (Re Mohammed Selim[2020] HKCFA 25 at §§6 to 7).

13. For the above reasons, we refuse to grant an extension of time to file the Notice of Motion and dismiss the Notice of Motion filed on 8 July 2020.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The 1^st to 4^th Applicants, acting in person

[1] [2018] HKCFI 1891

[2] [2019] HKCFI 2380

[3] The “appeal” referred to is the present application for leave to appeal to the Court of Final Appeal. The “judgment” referred to is the judgment of the Court of Appeal handed down on 20 May 2020, as copies of the judgment were returned to the court on 8 June 2020.

CAMP 265 /2019

[2020] HKCA 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 745 OF 2017)

________________________

BETWEEN
	Caramat Virginia Lobeban	1^st Applicant
	Iqbal Syeda Rabika Qaisar (a minor)	2^nd Applicant
	Iqbal Mohammad Usama Qaisar (a minor)	3^rd Applicant
	Iqbal Syed Umar Qaisar (a minor)	4^th Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 5 November 2019

Date of Judgment: 20 May 2020

________________________

J U D G M E N T

________________________

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

1. On 23 August 2018, Deputy High Court Judge Josiah Lam refused the applicants’ application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claim^{^[1]}.

2. On 2 August 2019, the applicants applied for leave to appeal against the said decision out of time. Their application was refused by Deputy High Court Judge Bruno Chan on 14 October 2019 as he considered that the intended appeal does not have any prospect of success^{^[2]}.

3. The applicants took out a renewed application for leave to appeal against the judge’s decision out of time to the Court of Appeal on 21 October 2019.

4. The 1^st applicant is a national of Philippines of 47 years old. The 2^nd to 4^th applicants are her minor children^{^[3]}. All four entered Hong Kong as visitors in April 2014. They overstayed and surrendered to the Immigration Department on 5 May 2014. The 1^st applicant submitted a non-refoulement claim for herself and the 2^nd to 4^th applicants on 8 May 2014. She claimed that her brother would harm or kill them because she has converted from Christianity to Islam and her children are also Muslims.

The Director’s decisions

5. By a Notice of Decision dated 24 October 2014 and a Notice of Further Decision on 30 December 2016, the Director rejected the applicants’ non-refoulement claim on all applicable grounds.

The Board’s decision

6. The applicants appealed against the Director’s decision dated 24 October 2014 to the Board. The Board considered that the evidence does not show any harm or any threat of harm as instigated by state agent in the capacity of the state nor was any harm or any threat of harm done or uttered under the colour of state authority or in the ostensible exercise of public authority. On the 1^st applicant’s own evidence, neither she nor any of her children had sustained serious injury or serious harm. The Board found there is no substantial ground to believe that they will face future risk of serious harm. The Board assessed that the applicants can relocate in other places in the Philippines without undue hardship. Hence the appeal was dismissed by the Board on the grounds of torture risk^{^[4]}, BOR 3 risk^{^[5]} and persecution risk^{^[6]} on 15 January 2016.

7. On 23 February 2017, the applicants appealed against the Director’s further decision. The appeal was dismissed by the Board on 22 September 2017 as the Board found that the applicants had failed to establish a case under BOR 2 risk^{^[7]}.

The intended judicial review

8. The applicants filed a Form 86 and an affirmation on 10 October 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

9. An oral hearing was conducted before the judge on 12 June 2018. The judge held that there is no substance in the applicants’ complaints. The Director and the Board had proper basis for their findings and conclusions, and their decisions were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. They were acquainted with the facts and applied the law correctly. They had achieved the high standards of fairness required of the applicants’ non-refoulement claims. The judge considered that the applicants’ intended application for judicial review does not have any realistic prospects of success and refused their application on 23 August 2018.

Grounds of appeal

10. The grounds of appeal stated in the applicants’ written submissions may be summarized as follows:

(1) They will face problems and receive threats should they return to the Philippines or Pakistan^{^[8]}. In practice, families who have religious differences and problems are not protected in the Philippines and will be considered as private matter. Pakistan does not respect a divorced foreign woman. Her children will be considered as bastard children and there have been reports about how these children were killed^{^[9]}.
(2) The human rights report showed that the Philippines is fraught with unlawful killings by the police and armed individuals. The Philippines would withdraw from the international criminal court. The problem there is obvious. The country is currently run by a dictatorial president who failed in his accountability and there have been many cases of extrajudicial killings. The Board overlooked or was misguided to believe that the Philippines will actually practise the rule of law when in fact the law cannot really protect her^{^[10]}.

Analysis

11. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account the following: (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.

12. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 23 August 2018. The applicants took out a summons in the court below on 2 August 2019. The application was late by more than 10 months exclusive of the intervening summer vacation of the High Court. The delay is very substantial.

13. The 1^st applicant stated in the summons and affirmation that she did not understand the procedure and did not know where to seek help until an officer told her that she needed to appeal. It was only when she found help from an NGO that she understood the procedure.

14. Ignorance of the law is not a reasonable excuse for the substantial delay. When the applicants’ delay is inexcusable, they must show a real prospect of success on the merits: Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 H.K.C. 125.

15. In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

16. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. The assessment of evidence, COI, risk of harm, state protection and viability of internal relocation is 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.

17. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18. In the present application, the Board found that the 1^st applicant’s brother is not a state agent, there is no evidence of injury which satisfied the prescribed minimum level of severity and there is no substantial ground to believe that the applicants will face future risk of serious harm. The applicants failed to provide viable evidence to refute the Board’s findings and failed to show that there are errors of law or procedural unfairness or irrationality in the decisions of the Board.

19. The applicants also failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

20. For the above reasons, they do not have any prospect of success in the intended appeal. We dismiss the summons filed on 21 October 2019.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicants, acting in person

[1] [2019] HKCFI 1891

[2] [2019] HKCFI 2380

[3] The 2^nd to 4^th applicants were born in Hong Kong but they hold Filipino passports.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[5] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[7] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[8] The 1^st applicant’s former husband is a national of Pakistan.

[9] In the previous leave application, the 1^st applicant also mentioned the failure of the decision makers to consider the harm from the Christian community who discriminated against them (See ground 3 attached to her affirmation in HCAL 745/2017).

[10] In the previous leave application, 1^st applicant mentioned the failure of the decision makers to conduct sufficient independent inquiry into the relevant Country of Origin information materials (“COI”) (See ground 2 attached to her affirmation in HCAL 745/2017).