CACV 197/2022
[2022] HKCA 1169
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 197 OF 2022
(ON APPEAL FROM HCAL 2078 OF 2018)
________________________
BETWEEN |
| | GALLETIS DOMINICA DOSCA | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
Before: Hon Chow JA and Ng J in Court
Date of Judgment: 20 September 2022
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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. On 11 May 2022, the Applicant, acting in person, filed a notice of appeal (“the Notice of Appeal”) against the order of Deputy High Court Judge P Li (“the Judge”) dated 3 March 2021 (“the Order”) refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 27 September 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 January 2018.
BACKGROUND
2. The Applicant is a national of the Philippines. She last came to Hong Kong on 11 June 2014 as a visitor and overstayed. She was arrested by the police on 20 January 2015. She raised a non-refoulement claim on 22 January 2015, alleging that if refouled, she would be harmed or killed by her ex-partner who was a drug dealer. Details of the Applicant’s claim were summarised by the Judge at §§1-11 of the CALL-1 Form ([2021] HKCFI 520).
3. By a Notice of Decision dated 25 January 2018, the Director dismissed 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].
4. The Applicant appealed the Director’s decision to the Board. On 27 September 2018, 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 §18 of the CALL-1 Form:
“… The adjudicator concluded that there was no real risk that the applicant would suffer harm if she returned to the Philippines. The reasons are as follows:
a. In relation to the death of the applicant’s father, the adjudicator did not accept the applicant’s claim that her family could take revenge by slaughtering an animal.[5] The adjudicator did not accept that it was not investigated because of political connections of the ex-partner’s family.
b. The applicant had been travelling to Hong Kong on many occasions since 2007. These took place at a time when she was persistently assaulted and threatened by the ex-partner. Even when her father was murdered in July 2014, she did not immediately seek non-refoulement protection in Hong Kong but delayed until January 2015 after she was arrested. This conduct was indicative that she was not actually in fear.
c. During the hearing, the applicant told the TCAB that the ex-partner was a member of a criminal gang. The applicant’s evidence was vague and unpersuasive. She had not mentioned this with the Director earlier. The adjudicator did not accept her explanation for not doing so.
d. The adjudicator found that the there was no assault by the ex-partner since 2004. In fact, there was not much contact between them for about 10 years. The domestic violence occurred only when they cohabited. There was no consent or acquiescence by any public authorities. There was no substantial ground for believing that she would be in danger of torture or ill-treatment.
e. Given the evidence, there was no ill-treatment amounting to ‘a minimum level of severity’. BOR 3 claim failed. For similar reasons, BOR 2 claim also failed.
f. The adjudicator did not accept that the applicant was credible in several aspects of her evidence as stated above. She was not satisfied that the applicant had a well-founded fear of persecution based on Convention reasons. The claim based on persecution risk failed.”
THE JUDGE’S DECISION
5. On 2 October 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
6. On 3 March 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[19] The applicant filed an application for leave for judicial review on 2/10/2018. In her affidavit in support, she did not specify any error of the TCAB decision. However, she sent a letter to this court on 23/10/2020. She alleged that there were procedural errors in the TCAB. There was failure to meet the greater care and duty owed to unrepresented applicants. She could not understand the oral hearing.
[21] Although the applicant alleged procedural unfairness, she did not point out any specific aspects. In the oral hearing before the TCAB, she was assisted by an interpreter. She gave evidence and answered questions in detail. There was no record that she could not follow the proceedings. There was no complaint whatsoever in the decision of the TCAB.
[22] A claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings. The applicant had legal assistance in presenting her case to the Director. The decision of the Director must have been translated to her by the DLS. She basically repeated her story before the TCAB. The adjudicator was fully aware of the relevant documents. Given the circumstances, I do not find any unfairness.
[23] In my view, the evidence as summarised above fully support the TCAB decision. The factual basis of her claim was not credible especially in relation to the murder of her father and the delay of her application for the non-refoulement claim. I agree with the adjudicator. I am satisfied that there was no error of law nor was there any procedural irregularity. The decision of the TCAB is rational.”
7. On 11 August 2021, the Judge refused the Applicant’s application by summons dated 22 March 2021 for an extension of time to appeal the Order. The Judge had doubts about the Applicant’s explanation for her delay (namely, that she did not receive the court’s decision by mail, and only obtained the decision after searching the court file, and when she learned that the appeal period was 14 days, the deadline for appeal had already expired), because there was no explanation as to why she failed to receive the decision which was sent to the Applicant’s last known address supplied by her in writing, and there was no detail as to when she searched the court file. Anyhow, the Judge considered that the most important issue for deciding whether to grant an extension of time to appeal was the merits of the intended judicial review. The Judge took the view that the intended judicial review had no merits, and hence refused the application for extension of time to appeal.
8. By a further summons dated 30 August 2021 taken out in the Court of Appeal, the Applicant renewed her application for extension of time to appeal. On 28 April 2022, G Lam JA granted the Applicant an extension of time to appeal on the basis that in the court file, there was actually a praecipe which showed that the Applicant searched the court file on 19 March 2021 (Friday), and she filed the summons for extension of time to appeal in the Court of Instance on the following working day (22 March 2021).
THE PRESENT APPEAL
9. In the Notice of Appeal, the Applicant stated the following grounds of appeal:
“The High Court dismissed my leave to apply but the court did not show any reason. I do not accept this decision. Please consider my reason.”
10. The Applicant has failed to lodge skeleton argument in support her appeal in accordance with the directions of the Registrar of Civil Appeals given on 13 June 2022. Accordingly, she is deemed to have waived her right to have an oral hearing of the appeal, and the appeal shall be considered on paper only.
DISCUSSION
11. 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 should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
12. The Applicant’s complaint that the Judge did not give any reason for his decision is plainly unsustainable. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 3 March 2021, and has failed to raise any viable ground of appeal against the Order.
13. The Applicant’s appeal has no merits and is dismissed, with no order as to costs.
(Anderson Chow)
Justice of Appeal | (Peter Ng)
Judge of the Court of
First Instance |
The Applicant, acting 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 her 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.
[5] At the hearing of the appeal before the Board, the Applicant, when asked why her family did not report her father’s murder to the police, said that her mother’s relatives wanted to report the murder, but her father’s relatives refused to do so because they belonged to an ethnic group which believed that if a life was taken they should slaughter an animal and the person who took the life would also lose his/her life (see §42 of the Board’s Decision).