RE QUINTERO CORREA JHON EDUAR

CAMP 265/2022, [2024] HKCA 531

On Appeal From [2022] HKCA 1210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 908 OF 2019)

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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.  By a summons dated 21 July 2022, the applicant applied to this court for “leave to file and serve the notice of appeal” against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 30 June 2022.  By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 1847) (“the EOT Decision”) against his earlier order dated 3 May 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 1210) (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 28 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 November 2018 rejecting his non‑refoulement claim (“the Director’s Decision”).

3.  Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Colombia.  He last entered Hong Kong on 11 February 2017 and was permitted to stay as a visitor until 12 May 2017.  On 22 February 2017, he was arrested by the police for trafficking in a dangerous drug.  He was subsequently convicted and sentenced to 34-month imprisonment.  On 12 July 2018, he lodged a non‑refoulement claim on the basis that if refouled, he would be harmed or killed by his ex-colleague Carlos Andres Colorado Echeverri (“Carlos”) as he reported a work incident to another ex-colleague on 3 April 2012 and Carlos assaulted him for his whistleblowing.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] and [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  By a letter dated 18 January 2019, the applicant requested for his appeal to be determined without an oral hearing.  The Board proceeded to determine his appeal based on the available materials and dismissed his appeal on 28 February 2019.  Having assessed the evidence, the Board did not accept that the alleged injuries suffered by the applicant from Carlos’s assaults attained a minimum level of severity required for non-refoulement protection.  The Board found that the applicant would not face any substantial future risk of serious harm or persecution if he was to return to Colombia.  In any event, after considering the Country of Origin Information (“COI”), the Board was of the view that both state protection and internal relocation would be available to the applicant.  Accordingly, the Board considered that the applicant’s claim failed on all applicable grounds.

The Leave Decision

7.  On 3 April 2019, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision.  He did not put forward any ground of challenge and only stated in his supporting affidavit that the Board’s Decision was unjust and unfair as he was not able to submit documents to prove his case when he was detained at the Castle Peak Bay Immigration Centre.  As he did not request for an oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [13] ‑ [19] of the Leave Decision:

“13. 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).

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

15. 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.’

16. The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings. He has not been able to show what documents would assist him to prove his case.

17. 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.

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

CONCLUSION

19. I therefore refuse to grant leave for the applicant to apply for judicial review. Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 26 May 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was ten days late with his intended appeal.  In his supporting affirmation, he claimed that as his family were infected with COVID-19 virus and chose to be self-isolated at home, he did not receive the Leave Decision from the letter box until the end of self-isolation.

11.  By the EOT Decision, Judge noted that the applicant had not been able to identify in what respect the Board had erred in its decision.  As the applicant was unable to show that he had any reasonable prospect of success in his intended appeal against the Leave Decision, the Deputy Judge refused to extend time for his appeal and dismissed his application.

The Present Application

12.  By a summons and supporting affidavit both filed on 21 July 2022, the applicant applied for leave to appeal against the EOT Decision.  In his supporting affidavit, he set out four grounds of appeal summarised as follows:

(1)  The Board failed to make its own findings on his claim or conduct its own research and inquiries on any COI relevant to his claim;

(2)  The Board failed to properly assess the risk that he would face in Colombia by referring to and relying on the relevant COI;

(3)  The Board erred in dismissing his claim wholly on the basis of credibility;

(4)  The Board failed to properly consider the vulnerability of his personal circumstances as a victim of special discrimination or the physical and mental abuses he had suffered.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 21 July 2022 and the court order dated 9 August 2022, the applicant lodged his written submissions on 16 August 2022.  In those submissions, he claimed that he was informed by his family in August 2022 of various attacks by his enemy in his house during the COVID-19 pandemic.  He also claimed that his sister had filed a police report on those attacks and he would submit further documents once he obtained them from his sister.  He asserted that his home country was corrupt and that government officials and authorities were afraid of those powerful gangsters. He further asserted that the Director failed to conduct a sufficient inquiry of the relevant COI and to consider the issues of BOR3 risks and to give reasons. He contended that the Leave Decision was based on the Director’s Decision and that the Deputy Judge erred in holding that there was procedural fairness despite his lack of legal representation at the hearing. 

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  Since a delay of nine days in taking out his application for extension of time to appeal is not substantial, for present purposes, we will focus on the merits of his application.

17.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  At the outset, it is noted that all the grounds advanced by the applicant in his supporting affidavit and written submissions are new and not raised before the Deputy Judge.  The applicant did not give any reason as to why these grounds were only raised on appeal and not before the Deputy Judge.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s complaints are also general and bare assertions without any specific particulars or evidence in support.  Moreover, those complaints were directed mainly at the decisions of the Director and the Board and did not point out with particulars how the Deputy Judge had erred in the Leave Decision.  They do not constitute proper grounds of appeal.  His intended appeal must fail on this basis alone.

19.  In relation to the grounds advanced in his written submissions, they are plainly misplaced.  In reaching the Leave Decision, the Deputy Judge did not base his decision on the Director’s Decision, but rigorously examined the Board’s Decision with anxious scrutiny and found no error of law, procedural unfairness or irrationality in the Board’s Decision: see the Leave Decision at [14] and [17].  As rightly noted by the Deputy Judge in the Leave Decision, the applicant did not request for an oral hearing and accordingly, his application for leave to apply for judicial review was rightly dealt with on paper by the Deputy Judge.  In any event, it is well‑established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  We are of the view that the consideration of his application for leave to apply for judicial review by the Deputy Judge was thorough and fair and that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.

20.  Further, as repeatedly emphasised by the Court of Appeal, it is well-established that assessment of evidence, COI materials 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly pointed out by the Deputy Judge, the Board rejected the applicant’s non-refoulement claim upon findings that his alleged injuries did not attain the level of minimum severity and that state protection and internal relocation are available after considering the COI, but not on the basis of credibility. We see no basis to interfere with the Leave Decision.

21.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 21 July 2022 is dismissed.