CACV 154/2023, [2023] HKCA 1234
On Appeal from [2023] HKCFI 1113
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 154 OF 2023
(ON APPEAL FROM HCAL NO 750 OF 2019)
____________________
| BETWEEN | | |
| | MERIALES MARICEL GAMIZ | 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 Lisa Wong J in Court |
| Date of Hearing: | 31 October 2023 |
| Date of Judgment: | 21 November 2023 |
____________________
JUDGMENT
____________________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 11 May 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 4 August 2017, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 5 August 2016 and 22 May 2017.
BACKGROUND
2. The Applicant is a national of the Philippines. She entered Hong Kong as a foreign domestic helper with permission to remain in Hong Kong until 19 February 2017 or within 14 days of the termination of her employment contract, whichever was the earlier. Her employment contract was prematurely terminated on 12 May 2015. She did not depart and overstayed in Hong Kong illegally since 27 May 2015. She surrendered herself to the Immigration Department on 7 July 2015, and lodged a non-refoulement claim on 7 December 2015, claiming that if refouled, she would be harmed or killed by her ex-boyfriend, Julius Zareno, and the ex-mayor, Wilfredo Tabag. The Applicant gave birth to a son on 2 January 2016, and lodged a non-refoulement claim on his behalf on 30 March 2016 based on the same allegations. Since the Applicant’s son is not a party to these proceedings, it is not necessary to consider his non-refoulement claim in the present appeal.Details of the Applicant’s claim have been summarised by the Judge at §§1-8 of the CALL-1 Form.
3. By a Notice of Decision dated 5 August 2016 and a Notice of Further Decision dated 22 May 2017 (collectively “the Director’s Decisions”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s Decisions to the Board. On 4 August 2017, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§14-15 of the CALL-1 Form, as follows:
“[14] The Board assessed her appeal on paper and considered that there were significant doubts in the applicant’s claim. While she pictured Julius as someone who was abusive and controlling, she was able to leave him on multiple occasions, i.e., to her parents’ house, to Singapore and ultimately to Hong Kong [41]. Both facts that the applicant continued to live with Julius and that she did not cut tie with Julius even when she was in Hong Kong were difficult to comprehend [42]. Her assertion that Julius learnt of her pregnancy through a neighbor lacked details [43]. In addition, Julius did not hurt their daughter as he threatened to do after the applicant left the Philippines [44]. As to the claimed fear of harm from ex-mayor, the applicant failed to adduce any documentary evidence in support of the alleged corruption case against the ex-mayor nor did she provide any support that the old staff were being chased after by the ex-mayor. She also did not mention that any officials, such as the police officers, had ever looked for her as a witness in a criminal case [45].
[15] As a result, the Board found that the claims of the applicant and her son lacked credibility and dismissed their appeal.”
THE JUDGE’S DECISION
5. On 18 March 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision dated 22 May 2017. No ground for seeking relief was given in the Form 86 or in her affirmation filed on the same date. Since the Director’s Decisions had been overtaken by the Board’s Decision, the Judge correctly amended the Form 86 so that the Board became the Putative Respondent and the Director became the Putative Interested Party, and treated the Board’s Decision as being the subject matter of the application for leave to apply for judicial review.
6. On 11 May 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[18] As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of her application is on 4 November 2017. The delay is about one year and four months. She has given no explanation for her delay and her application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.
…
[22] The Board had considered applicant’s evidence and did not believe it. There is no valid ground to challenge the Board’s Decision.
[23] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”
THIS APPEAL
7. In her Notice of Appeal dated 19 May 2023, the Applicant stated the following:
“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”
8. In her 3-page written submissions dated 12 October 2023, the Applicant repeated her fear of harm from her ex-partner against her and her son. She said that the police and the government in the Philippines might not be able to protect her, and relocation was out of the question for her.
9. At the hearing of the appeal, the Applicant had nothing to add.
DISCUSSION
10. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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’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)).
11. Further, the assessment of evidence, COI, 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: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
12. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
13. The Applicant’s appeal against the Order has no merit and is dismissed.
(Anderson Chow)
Justice of Appeal | (Lisa Wong)
Judge of the Court of First Instance |
The Applicant, appearing 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 of 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.