CAMP 88/2023, [2023] HKCA 720
On An Intended Appeal From [2022] HKCFI 3264 &
[2022] HKCFI 3762
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 88 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 2483 OF 2018)
________________________
BETWEEN |
| | DAGDAGEN VIRGINIA BAGANGAO | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
________________________
| Before: | Hon Au and Chow JJA in Court |
| Date of Written Submissions: | 14 March 2023 |
| Date of Judgment: | 12 June 2023 |
______________
J U D G M E N T
______________
Hon Chow JA (giving the Judgment of the Court):
1. On 28 February 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 3 January 2023 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 25 October 2022 (“the Order”) refusing to grant her leave apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 December 2017 rejecting the Applicant’s non-refoulement claim.
3. 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
4. The Applicant is a national of the Philippines. She worked in Hong Kong as a foreign domestic helper. When her last employment contract was terminated prematurely on 10 July 2013, she failed to leave Hong Kong after the expiry of her limit of stay on 24 July 2013. On 6 June 2014, she was arrested by the police for overstaying. On 16 June 2014, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by the New People’s Army (“NPA”), who had allegedly been extorting food and money from her family since 2005. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 3264).
5. By a Notice of Decision dated 7 December 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 2 November 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 §§9-10 of the CALL-1 Form, as follows:
“[9] The Board considered that the centerpiece of the applicant’s claim was inherently inconsistent and it highlighted the material inconsistencies [29]-[36]. The Board also assessed the country of origin information and found that state protection against the NPA was in place [45]-[57]. Meanwhile, the Board found that the past ill-treatments from the NPA was of low intensity and frequency [75]. In addition, when the applicant stayed in other areas of the Philippines from 2005 to 2010, she had encountered no problems with the NPA [76]. Besides, the applicant’s conducts were inconsistent with someone who was genuinely in need of protection [77].
[10] As there was no evidence showing that there was state involvement, that the applicant sustained injuries of sufficient severity, and that the government of the Philippines was unable to protect the applicant [78]-[86], the Board concluded that the applicant’s claim was unsubstantiated in all applicable grounds.”
7. On 5 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review. In her affirmation of the same date, she stated that she wished to apply for review of the Board’s Decision. No ground of judicial review was given in the Form 86 or in her affirmation.
THE JUDGE’S DECISION
8. On 25 October 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:
“[17] There is no valid ground to challenge the Board’s Decision.
[18] 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.
[19] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”
9. On 29 November 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 3 January 2023, the Judge refused the application, holding that there was no realistic prospect of success in her intended appeal.
THIS APPLICATION
10. By a summons taken out on 28 February 2023, the Applicant applied for an extension of time to appeal against the Judge’s order of 3 January 2023.
11. In her written submissions dated 14 March 2023, the Applicant stated that she disagreed with the decisions of the Director and the Board, alleged that her case had not been determined fairly, and complained that she was not provided with proper legal or language assistance.
DISCUSSION
12. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.
13. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
14. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike[2019] HKCA 702, at §19.
15. 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 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,at §14(6)).
16. Further, the assessment of evidence, country of origin information, 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 is an error 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.
17. The Applicant’s complaint about the lack of legal or language assistance is a new complaint which was not raised in her application before the Judge. In any event, such complaint has no validity. The Applicant had legal and language assistance in relation to the assessment of her non-refoulement claim by the Director, and language assistance at the hearing of her appeal before the Board (if required). It is well established that a non-refoulement claimant is not entitled to legal assistance at all stages of the non-refoulement claim assessment process, or language assistance at all times that the claimant may desire. The Applicant has failed to show that the overall assessment process of her non-refoulement claim was unfair.
18. The Applicant has failed to identify or show any error in the Judge’s decision of 25 October 2022, and has failed to raise any viable ground of appeal against the Order.
19. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.
DISPOSITION
20. The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 28 February 2023 is dismissed.
(Thomas Au)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.