RE BIAG CYRIL DIS IW

CACV 189 /2022

[2022] HKCA 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 189 OF 2022

(ON APPEAL FROM HCAL NO 2204 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”)  on 25 April 2022 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision (“Board’s 2^nd Decision”)  of the Torture Claims Appeal Board (“Board”)  given on 7 September 2018, refusing to grant an extension of time for the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of his claim for non-refoulement protection (“NRF Claim”)  from ‘BOR 2” risk.  Such rejection was embodied in, and communicated to the applicant by, a notice of further decision dated 5 April 2017 (“Director’s 2^nd Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of the Philippines, is a fear of being harmed or even killed by his following enemies if he were to go back to the Philippines:

(1)  a drug syndicate for which the applicant had previously worked as a drug trafficker;

(2)  Jose Guinob (“Jose”)  and members of his family who claimed to have bought defective garments from the applicant;

(3)  Martin Sagudin who was hostile towards the applicant for introducing him to lend money to Jose who did not repay his debt; and

(4)  the Erning Banigen group because the applicant had borrowed from them money that he had failed to repay.

3.  The circumstances giving rise to such alleged fears have been set out in detail in paragraph 8 of the earlier notice of decision dated 30 April 2015 from the Director to the applicant (“Director’s 1^st Decision”)  and in gist in paragraphs 2 to 5 of the Board’s Decision dated 3 January 2017 (“Board’s 1^st Decision”)  and [6] of the Judge’s Decision embodied in the Form CALL-1 [2022] HKCFI 1147.

4.  For reason that will become apparent, it is unnecessary, for present purposes, to dwell on the circumstances raised as giving rise to the alleged fear of “BOR 2” risk[1].   

Entry into and overstaying in Hong Kong

5.  The applicant visited Hong Kong several times between 2001 and 2005. He first overstayed in September 2005 and was repatriated to the Philippines on 8 November 2006.

6.  The applicant, however, managed to obtain permission to land in Hong Kong again as a visitor on 18 November 2006 by using another identity.  By making a number of return trips to Mainland China and Macau, the applicant was granted extensions of his visa until 30 January 2007.  He did not leave and has been overstaying in Hong Kong since 31 January 2007.  He was not arrested by the police until 30 August 2011. 

Handling of the applicant’s claims against torture and for non-refoulement protection

7.  The applicant initially lodged a torture claim[2], which was rejected by the Director on 27 February 2012. The applicant’s petition dated 9 March 2012 to the Board was dismissed on 11 May 2012.  

8.  The applicant then claimed for non-refoulement protection against CIDTP by written representation dated 28 April 2014.

9.  As the applicant’s torture claim had already been disposed of, under the Unified Screening Mechanism (“USM”), the Director treated such new claim as having been made on 2 further grounds for non-refoulement protection: persecution risk[3] and “BOR 3” risk[4].  By the Director’s 1^st Decision, such claim was found to be unsubstantiated under either of these 2 additional grounds for non-refoulement protection.

10.  The applicant’s appeal to the Board against the Director’s 1^st Decision on 14 May 2015 failed after a hearing on 13 June 2016, at which the applicant was present to give evidence and answer the Board’s questions with the assistance of an interpreter.  In particular, the Board found the applicant’s evidence unreliable and the applicant not a genuine claimant but a dishonest witness.  He did not raise any claim during any of his visits from 2001 to 2005, nor did he do so on his last arrival in Hong Kong on 28 January 2007.  The applicant’s return to Hong Kong 10 days after his repatriation to the Philippines under a different identity is evidence of dishonesty on his part: see s 37ZD(1)(c)  and (3)  of the Ordinance.  The Board also found that the applicant had not sustained any injury from any of his alleged enemies.  Further, the alleged disputes happened some 13 years ago.  It is unlikely that the alleged enemies of the applicant would still have any interest in the applicant. In any event, the country of origin information shows that state protection and reasonable internal relocation options would be available to the applicant in the Philippines to negate the perceived risk of harm.

11.  The applicant had not taken any steps to seek to have the Board’s 1^st Decision judicially reviewed.

12.  Then, in the absence of any new or additional information from the applicant, by the Director’s 2^nd Decision, the Director dismissed the NRF Claim on the last applicable ground for refoulement protection, i.e. “BOR 2” risk.

13.  The applicant appealed to the Board against the Director’s 2^nd Decision on 4 July 2017, which was 2 months out of time.  The applicant admitted to the Board that he had failed to report his change of address to the Director, thereby causing the delay.  The Board did not regard such excuse to be reasonable.

14.  As for merits, the applicant only repeated his case as presented at the previous hearing before the Board, which was that his alleged enemies were still looking for him.  He admittedly had no further or additional information other than those already canvassed in the Board’s 1^st Decision. In light of the adverse findings in the Board’s 1^st Decision on the credibility (or rather the lack of credibility)  of the applicant, his appeal against the Director’s 2^nd Decision had no merit at all.  

15.  There was therefore no justification in the circumstances to grant the applicant any extension of time to appeal against the Director’s 2^nd Decision.

Application for leave for judicial review and Judge’s Decision

16.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”)  issued under HCAL 2204/2018 on 11 October 2018, the applicant applied for leave for judicial review of the Board’s 2^nd Decision. Neither the Form 86 nor the supporting affidavit put forward any ground for judicial review, properly so called.  The applicant merely stated that he applied for judicial review as he was “against” the decision of the Board.

17.  The applicant asked for an oral hearing.  A hearing was therefore fixed.  However, the applicant failed to appear at the time and court mentioned in the notice of hearing.  Consequently, after considering the written material before him, the Judge refused leave on paper in the absence of any error of law, procedural unfairness or irrationality in the Board’s 2^nd Decision for the reasons were set out in [19] – [24] of the Form CALL-1:

“19. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1).… …Assessment of evidence and COI materials and 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.’

22. The applicant has not raised any valid ground to challenge the Board’s BOR2 Decision, which refused time to be extended for the applicant’s late filing of the notice of appeal. The Board had taken into consideration of its First Decision which set out the facts of the applicant’s case and the explanation given by the applicant’s delay. It found that the applicant’s explanations for his delay were not acceptable and that the applicant had no merits in his intended application for leave to apply for judicial review of the Board’s BOR2 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.

24. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Appeal to Court of Appeal - grounds of appeal and submissions

18.  By the notice of appeal filed herein on 10 May 2022[5], the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal, properly so called.  He merely asserted:

“I want to appeal because the decision is unreasonable. No hearing conducted.”

19.  In his written submissions dated 11 July 2022, the applicant asked for a reconsideration of his case and stated that he is very concerned about his safety and he was told by his friends and relatives not to go back to Baguio City.  He did not consider internal relocation to be possible for him as he would not get a job at his age.

20.  The applicant appeared in person at the hearing of the appeal on 8 August 2022.  He had nothing to add.

Applicable legal principles

Court of First Instance’s role in judicial review in non-refoulement cases

21.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement cases

22.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)  & (4)].

Discussion - Appeal has no merit

23.  The applicant has not, by his notice of appeal or written submission, raised any ground of appeal, properly so called, against the Judge’s Decision in refusing him leave to apply for judicial review of the Board’s 2^nd Decision.

24.  The questions whether the applicant would face harm if he is refouled to the Philippines and whether the applicant can realistically and reasonably relocate to other parts of his country of origin are questions of fact within the province of the Board (after the Director).  The applicant’s much-repeated bare assertion that he would be in danger if he should return to the Philippines is inconsistent with the findings of fact made at both stages of the USM.  The applicant had not in the Form 86 or the supporting affirmation before the Judge identified, with any or any sufficient particulars, any error of law, procedural unfairness or irrationality on the part of the Board in finding against him.  That being the case, the proposed judicial review was hopeless and time for appeal was rightly not extended and leave was rightly refused.

25.  In the premises, we fail to see how it can be suggested that the Judge had erred in law or failed to consider any relevant matter or was plainly wrong for other reason(s).

26.  As for the complaint that the application for leave for judicial review was determined without a hearing, as stated in [17] above, a hearing was fixed pursuant to the applicant’s request but he did not turn up.

27.  In any event, we have anxiously scrutinised the Board’s Decisions and the Judge’s Decision and are satisfied that both are in order.

Disposition

28.  For these reasons, we see no basis to interfere with the Judge’s Decision.  Accordingly, we dismiss the appeal.