RE PAHATE JOEL PERIDO

CACV 280/2022

[2022] HKCA 1832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 280 OF 2022

(ON APPEAL FROM HCAL NO 2663 OF 2018)

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J U D G M E N T

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 15 July 2022, by which the Deputy Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2000).

2.  The intended judicial review is to challenge (a) the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 October 2017 (“the Board’s 2^nd Decision”), dismissing the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 27 March 2017 (“the Director’s 2^nd Decision”) rejecting his non-refoulement claim under BOR2 risk[1]; and (b) the Director’s Decision dated 26 October 2018 refusing to allow him to make a subsequent claim (“the Director’s 3^rd Decision”).

3.  We heard the appeal on 24 November 2022.^[2]  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of the Philippines.  He last arrived in Hong Kong on 5 April 2012 with permission to remain as a visitor until 10 April 2012, when his application for extension of stay was refused and he overstayed since 18 April 2012.  On 14 May 2014, he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Philippines he would be harmed or killed by a local businessman over his discovery of illegal gambling operation in the businessman’s resort compound.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 29 May 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[3], BOR3 risk^[4] and persecution risk^[5].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s 1^st Decision to the Board on 9 June 2015 and attended an oral hearing before the Board on 5 August 2016.  Having assessed the applicant’s evidence, the Board considered that his evidence as to his claim of fear of harm was vague and unreliable and that state protection and internal relocation would be available to the applicant.  The Board considered that the applicant failed to substantiate his case on all applicable grounds and dismissed his appeal on 1 March 2017.

7.  Meanwhile, on 15 March 2017, the Director invited the applicant to submit any additional materials or facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR2 risk.  After receiving and considering further submissions from the applicant by way of his letters dated 8, 14 and 22 March 2017, the Director assessed and rejected his non-refoulement claim on BOR2 risk by way of the Notice of Further Decision dated 27 March 2017.

8.  The applicant then petitioned against the Director’s 2^nd Decision to the Board on 10 April 2017.  As the Board considered that his submissions were the same as those he had made before the Director, which were not new or additional to what had already been argued previously in his case, the Board did not see the need for an oral hearing and determined his petition on paper.  Having assessed the materials provided by the applicant, the Board found that the applicant failed to substantiate his case under BOR2 risk.  Accordingly, the Board dismissed his petition on 20 October 2017.

9.  On 15 September 2018, the applicant made a request to the Director to make a subsequent claim as he was informed by his parents that his enemies were still looking for him in the Philippines and had recently killed his brother, and hence he feared he would be killed if refouled to his home country.  By a letter dated 21 September 2018, the Director required the applicant to provide further information and evidence in writing in support of his request, which he subsequently did by a letter dated 17 October 2018 enclosing additional information.

10.  By a Notice of Decision dated 26 October 2018, the Director further refused to allow the applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim.  The Director considered that the applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that there had been a significant change of circumstances since his previous claim was determined.  The Director also considered that there was no reliable evidence that the applicant’s brother was in fact killed other than hearsay and bare assertions, or that such alleged change when taken together with the materials previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings in his previous claim by both the Director and the Board of the availability of both state protection and internal relocation upon his return to the Philippines.

The Leave Decision

11.  On 23 November 2018, the applicant applied for leave to apply for judicial review against the Board’s 2^nd Decision and the Director’s 3^rd Decision. By that time, the applicant was late for over 10 months in relation to his intended challenge against the Board’s 2^nd Decision.  No ground of review was provided by the applicant in his Form 86 or supporting affidavit.  On 11 May 2022, the applicant attended an oral hearing before the Deputy Judge and a Tagalog interpreter was present to provide language assistance.

12.  By the Leave Decision, the Deputy Judge refused to grant extension of time for the applicant to challenge against the Board’s 2^nd Decision and dismissed his application for leave to apply for judicial review against the Board’s 2^nd Decision and the Director’s 3^rd Decision.  His reasons were set out in detail at [16] ‑ [25] of the Leave Decision:

“16. On 23 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the second decision of the Board of 20 October 2017 regarding his previous claim as well as the Director’s decision of 26 October 2018 in refusing his request to make a subsequent claim, but no ground for seeking relief was given in his Form against either decision, and in his supporting affidavit of the same date he did not put forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

17. By then the Applicant was also out of time with his intended challenge of the Board’s second decision, 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 date 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.

18. As the last day of the three-month period for him to file his Form 86 against the Board’s second decision fell on 20 January 2018, the Applicant was therefore more than 10 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.

19. In the Applicant’s case, a delay of more than 10 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that during the material time he had changed his address but without informing the authorities of his new address, and that it was much later when he reported on his recognizance to the Immigration Department that he was informed of the decision, but by then he was already out of time with his application.

20. The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate his bare assertion that he did not receive the decision in the mail due to his change of address, but of which it was in any event his duty to inform the authorities, I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.

21. As for the merits, if any, of his intended application against either decisions, as noted above the Applicant has failed to put forth any reasonably arguable grounds for his intended challenge, and as such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or the Director or in their decisions being clearly and properly identified by the Applicant, and given the fact that even on his own case at the highest that his claim simply did not engage the BOR 2 ground of which the Board’s decision was concerned, as well as the correct findings by both the Director and the Board in their assessment of his previous claim as to the availability of state protection and internal relocation to the Applicant upon his return to his home country, there is simply no merits in his intended application against either decisions.

22. 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.

23. In the Applicant’s case, as noted above the fact is that it has been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, there is simply no justification in the first place to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

24. 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 under all the applicable grounds or in the Director’s consideration of his request to make a subsequent claim.

25. 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 with his intended challenge of the Board’s decision for which I refuse to extend time, I accordingly dismiss his leave application as regard both decisions.”

The Appeal

13.  On 22 July 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“ABOUT MY CHANGE ADDRESS ISSUE I HAVE PROOF THAT I REPORT TO CHANGE MY ADDRESS THE PROOF IS ATTACH THIS DOCUMENT.” (sic)

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 August 2022, the applicant lodged his written submissions on 10 October 2022.  In those submissions, he merely repeated the factual background of his non-refoulement claim.  In addition, he also attached four news articles, namely (a) “Pampanga village chief running for councillor slain” published by the Philippine Star on 1 May 2022; (b) “1 killed as cops block suspected ‘jueteng’ group in Pampanga” published by the Inquirer Central Luzon on 11 September 2017; (c) “Ex‑Calumpit mayor Pagdanganan shot dead in town fiesta” published by ABS-CBN News on 5 May 2008; and (d) “Former Bulacan vice mayor shot dead” published by Philstar.com on 23 May 2004 (collectively referred as “the News Articles”).  The applicant contended that his friends who opposed the Jueteng operation were killed; and that the vice mayor who was his close friend, and the mayor who was his uncle were also previously killed.  In this respect, the applicant contended that the New Articles demonstrated that if a person knew something about the Jueteng operation and the leader, they would hunt the person down no matter what.  The applicant repeated that his brother died on 14 August 2014 and that the reason as to why he was “looking like always out of mind” was because his father died on 5 June 2021 and he did not know what other proof that would show that his brother and his father passed away.

15.  At the hearing of the appeal, a Tagalog interpreter was present to provide language assistance.  During the hearing, the applicant claimed that he still had documents to submit, which would show what happened to his friends who were with him when the incident happened, as well as those people who were close to him and his relatives and his brother.  The applicant further submitted that insofar as those intended documents concerning his friends and relatives, he had already submitted them before the Deputy Judge, but as to those intended documents which concerned his brother, they were new and not before the Deputy Judge as they were confidential and he needed to request for permission from this mother.  He requested for more time so that he could “lay out his case” about his brother which, the applicant claimed, was related to his case.  The applicant also handed up to this court a change of address form dated 30 April 2019 (“the Change of Address Form”) for HCAL 2663/2018[6], which he relied on as proof of his change of address.

Discussion

16.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

18.  In our view, the applicant’s appeal plainly lacks merit and must fail.

19.  As a start, contrary to what the applicant alleged in his Notice of Appeal that he had proof that he had reported to change his address, no such proof was in fact attached to his Notice of Appeal or written submissions.  Further, the Change of Address Form handed up by the applicant during the hearing only showed that he had informed the Court of First Instance of his change of address on 30 April 2019 for his application for leave to apply for judicial review under HCAL 2663/2018.  It did not show his change of address at the material time when the Board’s 2^nd Decision was handed down on 20 October 2017, or that he had informed the authorities of such change at the material time.  Accordingly, the Change of Address Form did not explain his delay in taking out his application for leave to apply for judicial review against the Board’s 2^nd Decision; and thus, is wholly irrelevant in the present appeal.  In any event, given the lack of merit in the applicant’s intended judicial review against the Board’s 2^nd Decision, the Deputy Judge was clearly correct in refusing to grant extension of time to the applicant to challenge against the Board’s 2^nd Decision.  We see no basis to intervene with the Deputy Judge’s refusal to exercise his discretion in this regard.

20.  More importantly, the applicant’s oral and written submissions only reiterated the factual basis of his non-refoulement claim without identifying any error in the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28]. Accordingly, the applicant’s submissions are not valid grounds of appeal and his appeal must fail on this basis alone.

21.  As to the News Articles, upon checking the court record, they appeared to be new documents and were not produced before the Deputy Judge.  The applicant also failed to demonstrate how the News Articles satisfied the rules in relation to admission of fresh evidence on appeal as set out in Ladd v Marshall [1954] 1 WLR 1489 at p1491[7], or even taking his case at its highest, how they had any bearing on his appeal.  Accordingly, we see no basis to consider the New Articles in the present appeal.

22.  Insofar as the applicant’s bare assertions during the hearing that there are still documents that he could submit to support of his case, it is noted that he did not produce any of those alleged documents in the present appeal.  It is further noted that the applicant already had ample opportunities before the Director and the Board to “lay out his case” and submit further documents for the authorities’ consideration, but he failed to give any good reason as to why he could not obtain those alleged documents earlier before the Director and/or the Board, or obtain permission from his mother earlier.  Accordingly, his bare request for more time to submit further documents at this late stage is without any basis and must be rejected.

23.  Further and in any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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 Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  Accordingly, we see no basis to interfere with the Leave Decision.

24.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.