RE BALINGASA EDNA BAGACINA

CACV 348/2022

[2023] HKCA 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 348 OF 2022

(ON APPEAL FROM HCAL NO 184 OF 2019)

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J U D G M E N T

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

1.  On 17 February 2023, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 19 December 2022 (“the Judgment”) ([2022] HKCA 1850). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 25 July 2022, refusing her application for leave to apply for judicial review ([2022] HKCFI 2247).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 16 January 2023.  Accordingly, the applicant was late for over a month in taking out her application for leave to appeal to the Court of Final Appeal.

5.  Although the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. ALL THIS JUDGEMENTS ARE NOT GOOD FOR ME. I WANT TO GO TO C.F.A..” (sic)

7.  In her supporting affirmation filed on 17 February 2023, the applicant stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION FOR GO TO THE COURT OF FINAL APPEAL BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT MY APPLICATION.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 3 March 2023. In those submissions, she repeated the factual basis and procedural history of her non-refoulement claim.  She asserted that her life would be under threat should she return to her home country.

9.  At the outset, the applicant had failed to give any reason, let alone good reason for her substantial delay of over one month in taking out her application for leave to appeal to the Court of Final Appeal. More importantly, her intended appeal is wholly without substance.  The allegations made in her Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  She did not identify any specific error in the Judgment with sufficient particulars. General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. Accordingly, the applicant’s intended appeal plainly has no merit.

10.  Further, even taking her case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

11.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

12.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.

CACV 348/2022

[2022] HKCA 1850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 348 OF 2022

(ON APPEAL FROM HCAL NO 184 OF 2019)

_______________

_______________

_______________

J U D G M E N T

_______________

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 25 July 2022, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2247).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 January 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 February 2018 rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 5 December 2022. After the hearing, we reserved our judgment to be handed down in writing. This is what we do now.

Background

4.  The applicant is a national of the Philippines. She arrived in Hong Kong on 24 November 2010 and was permitted to remain for employment as a domestic helper until 24 November 2012 or two weeks after termination of contract, whichever was earlier. Her employment contract was prematurely terminated on 18 March 2011, and she subsequently overstayed since 4 April 2011. On 14 July 2016, she surrendered to the Immigration Department. On 19 December 2016, she was convicted of the offence of breach of condition of stay by overstaying and was sentenced to four months’ imprisonment. By written representations dated 5 November 2016, 13 November 2016 and 28 December 2016, she raised a non-refoulement claim on the basis that if refouled, she would be harmed or killed by her abusive husband, Randy, because of a family dispute. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 7 February 2018 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that her non‑refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board on 14 February 2018. The applicant attended the hearing on 13 November 2018 and an interpreter qualified in the Tagalog and English languages was present to provide language assistance. Having assessed and considered the totality of the evidence, although the Board was prepared to accept that the applicant experienced domestic violence while in an abusive marriage from 2001 to 2010 and had come to Hong Kong to escape that abusive marriage, the Board was not prepared to accept that when the applicant returned to the Philippines in late 2010, she was attacked, assaulted or threatened with a knife or with death as asserted, and that the Board found that this part of her claim was fabricated belatedly by the applicant following the premature termination of her employment contract. The Board did not accept that she or her family had been the subject of any ongoing death threats or any other serious harm from her husband. The Board was thus not satisfied that the applicant would face any appreciable risk of harm from her husband if refouled. Accordingly, the Board found that the applicant failed to substantiate her case on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 21 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision. In her Form 86, the applicant did not state any ground of review. As summarised by the Deputy Judge at [10] of the Leave Decision, the applicant relied on the following grounds as stated in her supporting affidavit:

(1)  Procedural impropriety in the Board’s failure to apply paragraph 2 of the UN committee against Torture General Comment No 2 whereby satisfaction of a National states obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the decisions of the Board and the Director which focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI;

(3)  Procedural impropriety/irrationality in the Board’s failure to provide reasons for its assessment of the lack of BOR3 risk or sufficient basis to support such conclusion;

(4)  Error or misdirection in law in the Board’s failure to take into account the considerations of psychological strain and threats to the Applicant personally or threats to her directly to kill her; and

(5)  That there was no sufficient basis for the Board to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement to her home country.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [11] ‑ [15] of the Leave Decision:

“11. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or how did it fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way would BOR 2 be relevant to her claim which was based even on her own case just a domestic dispute between her and her husband without any official involvement that it simply did not engage the BOR 2 ground in its limited scope, and that it is simply factually incorrect for her to complain that the Board had failed to give sufficient reasons or basis for its determination of her claim when it clearly did so in its detailed analysis and reasoning as set out in paragraphs 66 ‑ 74 of the decision. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

12. 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.

13. In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

14. 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.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

The Appeal

9.  On 26 August 2022, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision. In her Notice of Appeal, she only stated that she wanted to challenge the Leave Decision, without giving any ground in support.

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 21 September 2022, the applicant lodged her written submissions on 31 October 2022. In those submissions, she repeated the factual basis and procedural history of her non-refoulement claim and stated that her enemy was very powerful, influential and rich. She then asserted that there were many errors during the processing of her non‑refoulement claim, but did not give any specific particulars or elaboration in support.

11.  We heard the appeal on 5 December 2022. A Tagalog interpreter was present to provide language assistance. During the hearing, the applicant confirmed that she had nothing to add to her written materials.

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

13.  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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

14.  At the outset, all of the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence. Although she disagreed with the Leave Decision, nowhere in her Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, her submissions are plainly not proper grounds of appeal.

15.  Further, general assertions of her fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib[2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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 Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11]. Accordingly, we see no basis to interfere with the Leave Decision.

16.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.

The applicant appeared in person