CACV 442/2021
[2022] HKCA 23
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 442 OF 2021
(ON APPEAL FROM HCAL NO 814 OF 2021)
________________________
| BETWEEN | | |
| | CALPITO WINNIE RAMOS | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
Before: Hon Au and Chow JJA in Court
Date of Judgment: 10 January 2022
____________________
JUDGMENT
____________________
Hon Chow JA (giving the Judgment of the Court):
1. On 15 September 2021, the Applicant filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated on 31 August 2021 refusing to extend time for the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 11 February 2021 and dismissing her leave application.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
3. The Applicant is a national of the Philippines. She arrived in Hong Kong on 3 January 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 October 2020 or within 2 weeks of its termination (whichever was the earlier). Her employment contract was prematurely terminated on 20 November 2019. She overstayed and remained in Hong Kong unlawfully. On 11 March 2020, she was arrested by the Police and referred to the Immigration Department for investigation. She then lodged a non-refoulement claim on the basis that if refouled to the Philippines, she would be harmed or killed by a local man for refusing his courtship. Details of the Applicant’s claim are summarised at §§1-5 of the CALL-1 Form.
4. By a Notice of Decision dated 27 May 2020, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).
5. On 10 June 2020, the Applicant appealed the Director’s Decision to the Board. On 11 February 2021, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).
JUDGE’S DECISION
6. On 2 June 2021, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.
7. On 31 August 2021, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review, and dismissed her leave application.
8. The Judge considered the Applicant’s delay of more than 3 weeks was substantial and the delay was without any explanation. His reasons for dismissing the leave application were set out at §§12-18 of Form CALL-1:
“12. As the last day of the three-month period for her to file her Form 86 fell on 11 May 2021, the Applicant was therefore more than 3 weeks late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.
13. In the Applicant’s case, a delay of more than 3 weeks must be considered as substantial, for which she has not provided any explanation, and as the record shows that the Board’s decision was sent on the same day to her then reported address without being returned through undelivered post, I do not see any good reason for her substantial delay.
14. As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forth 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.
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: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.
16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim 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: see TK v Jenkins & Anor [2013] 1 HKC 526.
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 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 substantial delay, I refuse to extend time and accordingly dismiss her leave application.”
THIS APPEAL
9. In her Notice of Appeal dated 15 September 2021, the Applicant states that she “make this affirmation in support of [her] application for judicial review for leave to apply [her] non-refoulement claims decision against the director of immigration / torture claims appeal board.” No supporting affirmation was filed by the Applicant.
10. The Registrar of Civil Appeals on 15 September 2021 directed the Applicant to lodge with the Court two sets of appeal bundle on or before 29 September 2021. The Applicant has failed to comply with the direction of the Registrar of Civil Appeals.
DISCUSSION
11. In a non-refoulement case, the Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board. The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(1)). The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
12. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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 shall be dismissed. The Court of Appeal would only reverse the judge’s decision if an applicant can demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the Court, or his decision is otherwise plainly wrong (see Re Iqbal Parvaiz[2020] HKCA 76 at §7.1).
13. The Applicant has failed to identify any errors of law made by the Judge, or point to any failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.
14. The present appeal has no merits, and is dismissed.
(Thomas Au)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
The Applicant, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.