RE PALAO RONALD DE JESUS

CAMP 66/2020

[2021] HKCA 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 66 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1027 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By the decision of 6 November 2019 (“the Decision”)[1], Deputy High Court Judge Bruno Chan (“the Judge”) refused to extend time for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 March 2017.  In the Board’s decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 24 September 2015 and 10 May 2017 rejecting the applicant’s non-refoulement claim.

2.  On 18 June 2020, the Judge refused to grant leave for the applicant to appeal against the Decision (“the Leave Decision”)[2]. By a summons dated 29 June 2020, the applicant sought leave from this Court to appeal out of time against the Leave Decision.  Following H v Director of Immigration [2020] HKCFA 22, the applicant may apply as of right by reason of Order 59 rule 21(1)(g) of the Rules of the High Court (Cap. 4A) against the Decision within 14 days and it was expired on 20 November 2019.  As such, this Court will process the present application as an application for an extension of time to appeal against the Decision.

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 20 July 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 5 August 2020.  The applicant lodged his written submissions as directed. 

4.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affidavit and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Philippines.  He arrived in Hong Kong on 9 February 2010 as a visitor and was permitted to stay for 14 days.  He did not depart and overstayed since 24 February 2010.  On 9 March 2010, he surrendered to the Immigration Department and lodged his claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by way of written representation.  Upon the commencement of the unified screening mechanism on 3 March 2014, his claim was taken to be a non-refoulement claim.  The applicant’s claim was based on his fear that if he were to return to his home country, he would be harmed or even killed by the family of a deceased person because they believed that the applicant should be responsible for his death. The factual background was succinctly summarized by the Judge at [2] – [4] of the Decision.

6.  By Notice of Decision dated 24 September 2015 and Notice of Further Decision dated 10 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The Director’s decisions covered the BOR 2 risk[3], the BOR 3 risk[4], the torture risk[5] and the persecution risk[6].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  The Board considered the appeal on paper and by its decision of 15 March 2017, it dismissed the appeal.  The Board accepted that the factual basis of the applicant’s claim without reservation that he was charged with murder, and that the charge was later provisionally dismissed and thereafter he had received death threats from the family of the murder victim.  The applicant had not been subject to torture or other physical injury.  Relevant Country of origin information (“COI”) indicated that systemic state protection is generally available in Philippines and internal relocation is a reasonable and viable option.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

8.  On 6 June 2018, the applicant filed a Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  By that time, he was almost 12 months late in taking out the application.  The applicant advanced the following grounds:

(1)  procedural impropriety in failing to give him an opportunity to present his case in an oral hearing in breach of the principle of procedural fairness in assessing his claim;

(2)  procedural impropriety in its failure to consider the concept of extended state acquiescence in consideration of his claim; and

(3)  procedural impropriety in its failure to conduct a critical analysis of the relevant COI materials in assessing his claim, failure to provide adequate reasons as to why the COI materials were in support of its decision, and failure to consider the Applicant’s fear that he would face a real risk from his enemies if he were refouled to his home country.  

The Judge’s decisions

9.  The application was heard on 3 July 2019 and by the Decision made on 6 November 2019, the Judge refused to extend time for the applicant to apply for leave for judicial review after due consideration of the Director’s and Board’s decisions.  The reasons were duly set out at [13] to [19] of the Decision:

“13. In the Applicant’s case, a delay of almost 12 months must be considered as very substantial or excessive, for which he explains that he never received the Board’s decision which he believes was sent to his former address stated in his Notice of Appeal, but as he had thereafter moved to another address, he was therefore unaware of the decision until June 2018 when he reported to his immigration officer that he was told of the decision when by then he was way out of time with his application for judicial review.

14. As it was clearly the duty of the Applicant to inform the relevant authorities promptly of any change to his address, and if he failed or neglected to do so, he has only himself to blame for not receiving the Board’s decision earlier to enable him to file his Form 86 within time, and as such I am not satisfied that he has provided any good reason for his serious delay.

15. More importantly, I do not find any of his grounds reasonably arguable or any merits in his intended application, as they are all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board had erred in its decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why the concept of extended state acquiescence was relevant to his claim.

16. As for his complaint of not being given an oral hearing before the Board, as has been held by the Court of Appeal, there is no absolute right to an oral hearing, as the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26.

17. As explained in its decision [19] – [25], the Board had accepted the factual basis of the Applicant’s claim without reservation, and upon being satisfied that there were no other issues that would require to be dealt with in an oral hearing, it was in my judgment entitled to decide in the circumstances that no useful purpose would be served by holding such a hearing, and I do not find any procedural unfairness or breach of high standards of fairness in the Board’s decision.

18. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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 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.”

10.  On 14 November 2019, the applicant took out a summon to apply of leave to appeal against the Decision and by the Leave Decision of 18 June 2020, it was dismissed by the Judge. 

The renewed application

11.  On 29 June 2020, the applicant only took out a summons before this Court to renew the application.  By following H v Director of Immigration (supra), leave under section 14AA of the High Court Ordinance (Cap. 4) is not necessary and we will deal with the application as an application for an extension of time to appeal the Decision.  

12.  The applicant did not provide any ground of appeal in the summons and the supporting affidavit.  In his written submissions, he repeated his reasons for the delay in filing form 86 as submitted before the Judge.  He further advanced two grounds to support his intended appeal:

(i)    The Board and the Director failed to comply with their duties to make sufficient inquiries into the COI and adopted a passive approach in contravention of the high standard of fairness as laid down by Li CJ in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.

(ii)   The Board and the Director had failed to take into account the relevant matters and took into account irrelevant matters when assessing his claim and hence the decisions were illegal. 

Legal principles

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

14.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

15.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

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

Discussion

16.  A delay of almost 12 months for the applicant to apply for leave for judicial review is substantial and we agree with the Judge that the applicant’s failure to provide the Board and the relevant authorities with an updated address that caused him to miss the Board’s decision is not a good and acceptable reason for his delay.

17.  Where the delay was both inordinate and inexcusable, the applicant is required to demonstrate that the intended appeal has real prospect of success, before extension of time to appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020.

18.  We now turn to the merit of the intended appeal.

19.  As the applicant failed to put forward any discernible grounds of appeal against the Decision, with the legal principles stated in [15] of this judgment, his intended appeal is bound to fail. 

20.  Further, the Board’s accepted the applicant’s and found that he had received death threats from the family of the deceased involved in the murder charge.  However, the Board pointed out that the applicant had not been subject to any torture in his home country and the threats he received was out of private grudge without any official or state involvement or acquiescence.  The applicant should have reasonable state protection and viable internal relocation alternative and the risk of harm upon his return was assessed to be low.  The Board had properly analysed and assessed the applicant’s case and it was perfectly open for it to reach its findings and conclusion of the case.  We do not see any error of law or procedural unfairness or irregularities in the Board’s decision that would warrant our intervention.  

21.  In our judgment, nothing set out in the written submissions can be constituted as valid ground of the intended appeal.

22.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 29 June 2020 is dismissed accordingly.

23.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2019] HKCFI 2353

[2] [2020] HKCFI 225

[3] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.