RE TACIO MIGUEL PELIN

CAMP 537/2022, [2024] HKCA 257

On appeal from [2022] HKCFI 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 537 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 343/2019)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 8 April 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 30 January 2019 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 24 April 2015 and 14 June 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.  The applicant is a national of the Philippines.  He entered Hong Kong as a visitor on 6 December 2008, but he overstayed and was arrested by the police on 17 November 2010.  On 14 December 2010, he lodged a torture claim, which was subsequently rejected by the Director on 22 July 2011.  He petitioned to the Board against the rejection of his torture claim, but that too, was dismissed on 15 August 2011.

3.  Thereafter, the applicant lodged a non-refoulement claim under the Unified Screening Mechanism on 23 July 2014, which was assessed on all applicable grounds other than torture.

4.  The applicant’s claim was based on a fear of being harmed or killed by members of the Cordillera People’s Liberation Army (“the CPLA”).  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of his decision (“the CALL-1 Form”)[1].

5.  By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s Decisions covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4]. 

6.  The applicant appealed to the Board.  After a hearing on 26 September 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that on the facts, the CPLA would not continue to seek out and harm people (such as the applicant) who have left the organisation.  Since the applicant had left the CPLA in 2008, the CPLA entered into an agreement with the Filipino government in 2011 to the effect that it no longer operated as a militant group.  The Board accordingly concluded that there was no real risk of harm posed to the applicant by the CPLA should he return to the Philippines.

The Judge’s decision

7.  The applicant filed a Form 86 on 8 February 2019 seeking to judicially review the Board’s Decision, without setting out any grounds.  In his supporting affidavit, he stated that he was “against [the Board’s decision]”, attached a copy of the Board’s Decision, but did not set out any grounds for review.  

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [15] of the CALL‑1 Form:  

“11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its factual findings based on reliable COI that his claimed harm no longer factually exists for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 78 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as on the basis of relevant and unchallenged COI, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.  

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if still exists is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines away from the Cordillera region, a decision also confirmed by the Board, there is simply no justification to afford him 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 his leave application.”  

The present application for extension of time to appeal

9.  The applicant’s address as stated in his Form 86 was at Kam Tin, Yuen Long (“the Kam Tin Address”).  According to the court’s record, a letter was sent to the Kam Tin Address on 8 April 2022, which enclosed a copy of the CALL-1 Form, was returned and marked “refused”.

10.  The applicant filed a notice of change of address into court on 25 April 2022, informing that his updated address was at Tung Lok Street, Yuen Long (“the Tung Lok Street Address”).  However, it appears that the CALL-1 Form was not sent to the applicant at the Tung Lok Street Address.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 8 April 2022.  

12.  The applicant thereafter took out a summons in the Court of First Instance on 8 June 2022 seeking extension of time to appeal, in which his address was stated to be at the Tung Lok Street Address.  In the summons and supporting affidavit, he stated that he could not lodge the appeal on time because he “did not get the High Court decision in time”.   

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 7 December 2022[5].

14.  By a summons filed on 13 December 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and the supporting affirmation, the applicant stated that he was not satisfied with the Judge’s decision, that the decision was “unreasonable” and that his life would be in danger if he were refouled.

15.  In his written submissions lodged on 28 December 2022, he repeated the dangers he may face if he returned to the Philippines, and also claimed that he would not be able to find appropriate employment should he relocate himself within the Philippines.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  Contrary to what the Judge stated at [4] of his decision dated 7 December 2022 (the hearing of the applicant’s application for leave to appeal out of time took place on 23 November 2022), the CALL-1 Form which was sent to the applicant at the Kam Tin Address on 8 April 2022 was in fact returned undelivered on 14 July 2022.  It also appears that the CALL-1 Form was not forwarded the Tung Lok Street Address, being the address that the applicant had informed the court of on 25 April 2022, which was before the hearing before the Judge on 23 November 2022. 

18.  Although the 14-day period to lodge an appeal had expired on 22 April 2022 (a Friday), and that the applicant had only informed this court of a change of address on 25 April 2022 (which was the following Monday), in the circumstances of this case, we are minded to focus on the merits of the intended appeal.  

19.  The intended appeal is of no merit.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  In his written submission he simply reiterated his allegation that he would be at risk of returned to the Philippines.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

21.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.  

22.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 13 December 2022 is accordingly dismissed.