CASTRO JAY PEE REYES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 13/2022, [2023] HKCA 1088

On Appeal From [2021] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 13 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2758 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court) :

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 16 July 2021 refusing leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 9 October 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 8 March 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1986.  He came to Hong Kong as a visitor on 29 April 2017 but did not depart and had overstayed since 14 May 2017.  He surrendered to the Immigration Department on 22 May 2017 and lodged his non-refoulement claim by written signification dated 6 November 2017, based on the fear that he would be harmed or killed by members of a powerful clan because he had seriously injured a man from that clan.  The details of his claim are set out at [6] to [8] of the Board’s decision.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 8 March 2018, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 19 June 2018, at which the applicant gave evidence and answered the Board’s questions.  The applicant’s case was that he was threatened by a man called Jerick with a gun at a karaoke bar in Bulacan, and that in the scuffle that followed he hit Jerick on the head who fell to the floor and became paralysed.  As Jerick was part of a big clan in Bulacan and his uncle was the Mayor, the applicant feared Jerick’s family would harm or even kill him, and he therefore fled to Hong Kong. 

5.  The Board assessed the applicant favourably as a witness, and accepted his claims about past events in the Philippines.  However, it noted that the applicant’s feared harm was from private individuals not acting in any official capacity, and that the Philippines government would take reasonable measures to protect the lives and safety of its citizens – protection which would be available to the applicant if he sought it.  The Board did not believe that the police in the Philippines would withhold protection from the applicant.  Further, the Board did not accept that Jerick’s family would be able to locate the applicant wherever he was in the Philippines.  The Board considered it would be safe for the applicant to relocate to a city such as Metro Manila or Cebu on return to the Philippines, where he would not be at risk of being subjected to serious physical mistreatment from Jerick’s family.  Overall there was therefore no real risk of the proscribed harm if the applicant was to return to and relocate within the Philippines.  Accordingly, in its decision dated 9 October 2018, the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

6.  On 4 December 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form.  In the accompanying affirmation, the applicant simply stated that the decision of the Board was “not acceptable”.

7.  The Judge, having considered the application on the basis of the documents alone as there was no request for an oral hearing, issued his decision on 16 July 2021, refusing to grant leave to apply for judicial review.  The reasons were set out at [12] – [16] of the Form CALL‑1 as follows:

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

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

‘ 13. .… …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.’

14. His ground in support of this application does not assist his application.

15. 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.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

8.  The applicant did not appeal within the period of 14 days prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead he filed a summons in the Court of First Instance on 2 November 2021 seeking an extension of time to appeal, stating that he was late because he did not receive any letter from the court until October 2021.  

9.  The application was dismissed in the Judge’s decision of 16 December 2021 on the ground that the applicant had failed to show any prospect of success in his intended appeal.

The renewed application before this Court

10.  By summons filed in this court on 11 January 2022, the applicant made another application for extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review.  He stated in the documents filed that he was late because he did not receive the documents from the court below within 14 days from 16 July 2021.  He did not however set out any intended ground of appeal against the substantive decision of the Judge.

11.  In his written submissions for the present application, the applicant merely set out certain general legal principles and passages from authorities and statutes without stating how they are relevant to his case.

12.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  In respect of the delay, whilst it may be credible that the applicant did not see the decision sent to his address until after the deadline, it is still necessary for him to show some prospect of success in the intended appeal.

14.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, the Board rejected the applicant’s non-refoulement claim because reasonable state protection was available and internal relocation would be a viable option as the risk of harm was from a family in the Bulacan region.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision. 

15.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

17.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.