RE BATAC RESTY LAGMAN

CACV 504/2024, [2025] HKCA 307

On appeal from [2024] HKCFI 3022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 504 OF 2024

(ON APPEAL FROM HCAL NO. 2204 OF 2019)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 21 November 2024[1] refusing leave to the applicant to apply for judicial review against the decision dated 26 July 2019 of the Torture Claims Appeal Board (“the Board”)  refusing the applicant’s application for late filing of a notice of appeal against the decision of the Director of Immigration (“the Director”)  dated 7 February 2017 rejecting the applicant’s non-refoulement claim based on the BOR 2 risk ground[2].

2.  The applicant’s appeal was scheduled to be heard on 25 March 2025.  The applicant was directed to lodge his written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 7 February 2025 and the Notice of Hearing dated 10 February 2025. 

3.  Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicant’s claim

4.  The applicant is a national of the Philippines, aged 56.  He last entered Hong Kong as a visitor on 19 November 2008.  He overstayed and surrendered to the Immigration Department on 11 May 2009.  On 16 July 2009, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the members of the New People’s Army (“NPA”).  The details of his claim were set out at [6] of the Director’s 1^st Decision and at [11] to [14] of the Board’s 1^st Decision.

5.  In gist, the applicant claimed he was a supporter of the NPA since high school but he started to disassociate himself from the party since 1997 as he no longer endorsed their laws and values and he wanted to further his missionary work as a pastoral staff in a church.  Since then, the NPA saw the applicant as a threat because he knew too much about their inner workings.  Fearing for his safety, the applicant moved to Novaliches and Santa Rita with his family to avoid the likely pursuit of the NPA.  He came to Hong Kong in 2003/2004 and returned to the Philippines in 2006 as he was not able to find a job.  He subsequently learned that his cousin was abducted and killed after quitting the NPA.  The applicant came to Hong Kong again in November 2008 on the strength of his passport.  He claimed that the NPA members were still looking for him and he cannot seek the protection of the police because he did not trust them.  

The Director’s and the Board’s decisions

6.  By a Notice of Decision dated 12 December 2014 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim based on the torture risk[3], the persecution risk[4] and the BOR 3 risk[5] grounds.

7.  On 9 January 2015, the applicant filed a notice of appeal to appeal against the Director’s 1^st Decision to the Board.  He was about 10 days late.  He explained to the Board in writing that “I was sick and with high pressure” and provided a medical certificate dated 6 January 2015 as supporting document.  By a decision dated 11 June 2015 (“the Board’s 1^st Decision”), the Board, after considering the reason for the delay and the merits of the applicant’s claim, refused to allow the application for the late filing of the NOA.   

8.  By the Board’s 1^st Decision, the Board found that the medical certificate was dated 6 January 2015 which was after the deadline for filing of the 1^st NOA (i.e. 27 December 2014).  Therefore, the applicant has failed to provide any documentary evidence to prove that he was sick during the prescribed period of time for him to file the 1^st NOA[6].  Further, the Board has assessed the merits of his claim and found that taking his case to the highest; the applicant has never attained a level of severity of pain or suffering, whether physically or mentally.  The threat of the NPA was simply hearsay and there was no evidence that the members of the NPA had any intention to harm or hurt him, nor was there any evidence of state acquiescence.  Given the lapse of time since the applicant left the Philippines in 2008, there was no evidence to show that he was still being pursued by the NPA.  Therefore, the applicant has failed to establish any substantial grounds to prove that he is in danger at present. In the absence of any exceptional reason for allowing the late filing of the 1^st NOA, the Board thus dismissed his application.

9.  Thereafter, the Director by a letter dated 6 January 2017 invited the applicant to provide additional information (if any)  on or before 20 January 2017 for assessing his claim under the BOR 2 risk ground.  The Director did not receive any response or additional information.  By a further decision dated 7 February 2017 (“the Director’s 2^nd Decision”), the Director decided against the applicant’s claim on the BOR 2 risk ground.

10.  On 9 April 2018, the applicant filed a NOA to appeal the Director’s 2^nd Decision to the Board.  The applicant was out of time by more than 13 months.  He stated in the NOA that “he was imprisonment and did not know his application was being rejected.”, but did not provide any supporting documents.  By a decision given on 26 July 2019 (“the Board’s 2^nd Decision”), the Board, after considering the applicant’s reasons for the delay, dismissed his application for the late filing of his NOA.

11.  The Board’s 2^nd Decision showed that from the Board’s enquiries made with the Immigration Department, the applicant was detained in the Castle Peak Bay Immigration Centre first from 7 January to 24 January 2015, and subsequently from 17 January to 20 April 2018.  The Director’s 2^nd Decision was served to his last known address on 7 February 2017, when he was not detained.  The Board considered that the applicant was obligated to file his NOA by the deadline of 23 February 2017, as there was no evidence of him being detained at that time[7].  The Board also considered that the strength of his grounds of appeal is only a factor to take into account in determining his application for late filing[8].  The Board considered there was no exceptional reason to allow the late filing of the NOA, and dismissed the application.

The Judge’s decision

12.  By a Form 86 dated 2 August 2019, the applicant applied for leave to judicially review the Board’s 2^nd Decision. Other than stating in the supporting affirmation that his dangerous situation has been disregarded, the applicant did not provide any grounds for seeking relief.  

13.  The Judge dealt with the application on paper.  By his judgment handed down on 21 November 2024, the Judge refused to grant leave to the applicant to apply for judicial review.  After summarising the applicant’s claim, the Judge held at [6] to [18] as follows:

“The Director’s Decision

6. The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”)  (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”)  (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”)  under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”)  (“Persecution risk”).

7. By way of the Director’s Decision, the Director dismissed the applicant’s claim because (i)  the risk of being harmed by the NPA was low as there had been no physical injury caused to him by the NPA [11]; (ii)  there had been a long lapse of over 10 years since he quitted NPA, any grudge should have been dissipated [12] (iii)  state protection would be available to him [14]; and (iv)  internal relocation was also viable if he returned to the Philippines [15].

The Board’s Decision

8. The applicant appealed the Director’s Decision to the Board. But he was late. The deadline for him to file the notice of appeal was on 27 December 2014. He filed his notice of appeal on 9 January 2015. His explanation to the enquiry was “I was sick and with high pressure.” He enclosed a medical certificate dated 6 January 2015. He also said that he was detained by the Immigration Department from 6 January 2015 to 24 January 2015.

9. The Board considered his explanation under section 37ZT of the Ordinance. It did not accept his explanation as the medical certificate was later than 27 December 2014, the deadline for him to file the notice of appeal.

10. The Board assessed the strength of the grounds of appeal [10]-15]. It found that the applicant did not have strong grounds of appeal as:

‘15. … Even taking his case to the highest, the evidence shows the Appellant had never attained a level of “severity” of pain or suffering whether physically or mentally. The threats given by the supporters of the NPA was only heard from his friends. There is no evidence to show that the supporters of the NPA had intended to harm or hurt the Appellant. There is no evidence to show any government official took part in the NPA. The Appellant left the Philippines for Hong Kong in 2008, there is no substantial evidence showing the supporters of the NPA are still looking for him presently. I find the Appellant failed to establish that there is substantial ground to believe that the Appellant is in danger in the present.’

Application for leave to apply for judicial review of the Board’s Decision

11. The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decision.

12. In his affirmation in support of his application, the applicant did not raise any ground to challenge the Board’s Decision.

DISCUSSION

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §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. It is obvious that the Board had considered the merits of the applicant’s case. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

17. There is no reason that the Court should interfere with the Board’s finding of the facts.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

This appeal

14.  On 26 November 2024, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  The Notice of Appeal stated the following as grounds of appeal:

“the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Our reasons for decision   

15.  In determining an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will examine the decision of the Judge and will only reverse that decision if the judge has made errors of law or has failed to take into account relevant matters placed before the court, or that his decision is otherwise plainly wrong.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  In the present case, the application for leave to apply for judicial review was directed at the Board’s 2^nd Decision which refused to allow the late filing of the applicant’s NOA to appeal the Director’s 2^nd Decision that concerns the BOR 2 risk ground.

17.  It is evident from the judgment that it has dealt solely with the Board’s 1^st Decision (see [6], [8] to [10]), and no consideration has been given to the Board’s 2^nd Decision, which is the subject matter of the applicant’s leave application.  There was no discussion of the Board’s 2^nd Decision or the Board’s reasoning in disallowing the late filing of the NOA to appeal the Director’s 2^nd Decision.  The Judge thus erred in holding that the Board had considered the merits of the applicant’s claim (at [16] of the judgment)  when the Board in its 2^nd Decision had not undergone such an exercise.  In short, the Judge has not provided any relevant reason for refusing leave to judicially review the Board’s 2^nd Decision.  In the circumstances, the Judge’s refusal of leave cannot be supported and ought to be set aside.

18.  We also note that the Board’s 2^nd Decision proceeded on the basis (at [9] and [10])  that the strength of the applicant’s intended appeal is “only a factor to consider it (sic) there are reasons for the late application”, and that “[it] had considered if there is any obvious and or quite exceptional reason for allow (sic) the application for the late filing of the Notice”.  This may raise concerns as to whether the requirements in Re Khan Kamal Ahmed [2019] HKCA 377 at [20] and Re Qasim Ali [2019] HKCA 430[9] have been satisfied, whether the Board had given due and sufficient consideration of the merits of the applicant’s claim on a BOR 2 risk assessment, and/or whether it had evaluated all the circumstances of the case in reaching its 2^nd decision.   

19.  In our view, these are issues that have to be considered in considering the applicant’s intended application to judicially review the Board’s 2^nd Decision.  We are further of the view that they are reasonably arguable issues.  We will therefore grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision.

Disposition

20.  For the above reasons, we make the following order:

(1)  The appeal is allowed.

(2)  The Judge’s order is set aside.

(3)  Leave is granted to the applicant to apply for judicial review of the Board’s decision dated 26 July 2019.

(4)  The applicant shall within 21 days from the handing down of this judgment file and serve an originating summons to apply for judicial review of the Board’s decision dated 26 July 2019.