RE HERRERA HOMER LEONARDO

CAMP 54/2023, [2024] HKCA 585

On appeal from [2022] HKCFI 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 54 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2335 OF 2018)

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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 7 December 2022 refusing to extend time for the applicant to appeal against his decision dated 7 July 2022 refusing to extend time for the applicant to apply for leave to apply for judicial review. The intended judicial review was purportedly against (i) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 2 November 2017 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 2 August 2016 and 14 July 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”); (ii) and the Director’s Decisions themselves.

Background

2.  The applicant is a national of the Philippines.  He initially entered Hong Kong in 2008 on the strength of an employment visa, but after an extension was refused by the Immigration Department in July 2015, he was issued (but did not comply with) a departure memo by the Department, which had required him to leave Hong Kong on or before 21 January 2016.  He lodged a non-refoulement claim by a written signification dated 21 January 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by the Tau Gamma Phi Fraternity.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 2 August 2016 and 14 July 2017 (i.e. the Director’s Decisions), the Director decided against the applicant’s claim.  The Director’s Decisions covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board.  After a hearing on 31 August 2017 (at which the applicant was absent), the Board dismissed the appeal on 2 November 2017 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  In dismissing his appeal, the Board found that the applicant’s claims of threats from members of the Tau Gamma Phi Fraternity were unsubstantiated by evidence, and the Board was not satisfied that he will be harmed by the Fraternity as a result of events which occurred in 2007 if he returned to the Philippines.

The Judge’s decision

6.  The applicant filed a Form 86 on 11 October 2018 seeking to judicially review the Board’s Decision out of time (as well as against the Director’s Decisions).  In the Form 86, he set out his grounds for review, which were summarised by the Judge at [10] of the CALL-1 Form as follows:

“(1) That the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim in that they were not fair or reasonable as required by the Wednesbury test in failing to recognize that his right to life must be protected by the criminal law from extra-judicial killings which he may face if deported to his home country;

(2) That the Adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) That the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4) That the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give weight to such evidence and instead ruled otherwise which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(6) That the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem of which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions; and

(7) That the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law.” 

7.  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 extend time for the applicant to apply for leave to apply for judicial review.  The Judge gave the following reasons in refusing to extend time at [11] to [20] of the CALL‑1 Form:

“11. By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12. As the last day of the three-month period for him to file his Form 86 fell on 2 February 2018, the Applicant was therefore more than 8 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of more than 8 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he never received the decision in the mail because he just happened to have moved to a new address without informing the authorities, and it was much later when he reported on his recognizance that he was informed by his immigration officer but by then he was already way out of time with his application.

14. The record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and even if the Applicant did in fact change his address at that time, of which he did not provide any further details or particulars or evidence to corroborate his bare assertions, it was his duty to inform the authorities as soon as practicable of such change, and if he failed to do so and as a result was therefore late with his application, he has only himself to blame. In the circumstances I am not satisfied that the Applicant has provided any good reason for his serious delay.

15. As for the merits, if any, of the intended application, those grounds listed above of the Applicant are however all just broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or what relevancy were torture or state acquiescence to his claim which even on the factual basis of his own case at the highest that he had never been tortured by anyone let alone by any state law enforcement agencies or politicians in the Philippines before he left the country years ago, or in what way did the Director or the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give him sufficient time or opportunity to present his evidence for his appeal when he himself failed to attend his oral hearing without any explanation. 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 his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, nor do I find any merits in his intended application either.

16. 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.

17. In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision after he failed to attend the scheduled oral hearing without any explanation, 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 finding of the Board.

18. 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, 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.

19. 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.

20. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

The present application for extension of time to appeal

8.  The applicant’s last known address at the time of the Judge’s decision was at No.1D Nan King Street, Yau Ma Tei, Kowloon (“the Address”). 

9.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 7 July 2022, and was not returned undelivered.

10.  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 7 July 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 4 August 2022 seeking extension of time to appeal, in which his address was also stated to be the Address.  In the summons and the supporting affidavit filed on the same date, he claimed that he did not receive the CALL-1 Form because “the letter was misplaced due to everyone can access our mailbox” and that he was informed of the decision “by those people who saw my decision online”.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 7 December 2022[6].

13.  By a summons filed on 8 February 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision “of lower court”, and in the supporting affidavit, he attached a copy of the Judge’s order dated 7 December 2022 refusing to grant an extension of time for him to appeal against his decision dated 7 July 2022.  Although the applicant purported to seek leave to appeal (out of time) against the decision of the Judge dated 7 December 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 7 July 2022, by which leave for judicial review was refused. 

14.  In breach of the directions made by the Registrar of Civil Appeals, the applicant lodged his written submissions with the court late, by around 2 months, on 10 April 2023.  He explained the delay as due to his illness with Covid.  However, the length of the delay is such that this cannot excuse the entire delay.  The delay is serious and he would in normal circumstances be deemed to have abandoned his right to rely on the same.  However, in any event, in those submissions he merely repeated the dangers he may face if refouled, and contended that the court below “only rely on prima facie evidence rather than circumstance”, without any particulars or elaboration.

Discussion

15.  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.

16.  The applicant has failed to provide the date on which he had learned of the Judge’s decision dated 7 July 2022, and his claim that there was a “problem” with his mailbox causing a misplacement of the court’s letter is speculative at best.  We do not accept this as a reasonable explanation of the delay.

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  As to these, 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.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

19.  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.

20.  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 8 February 2023 is accordingly dismissed.