RE PERADILLA FELIX JR BOOL

CACV 56/2021

[2021] HKCA 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 56 OF 2021

(ON APPEAL FROM HCAL 2185 OF 2018)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge C P Pang (the “Judge”) given on 2 February 2021 refusing to grant extension of time for his application for leave for judicial review and dismissing the application. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 29 November 2016 (the “Board” and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 30 January 2015 rejecting the applicant’s non-refoulement claim (the “Director” and the “Director’s Decision”).

Background

2.  The applicant is a national of the Philippines. He arrived in Hong Kong on 10 February 2010 as a visitor.  He was permitted to remain until 24 February 2010.  He overstayed and surrendered to the authorities on 22 March 2010.  He lodged a non-refoulement claim on 22 March 2010. 

3.  The applicant’s claim was based on threats from his former employer Hernando.  According to the applicant, Hernando was the Congressman of Batangas.  In around December 2009, Hernando asked the applicant and three bodyguards to kill a particular political rival of Hernando.  The purpose of the killing was to ensure that Hernando could win the upcoming Congressional Election in January 2010.  Hernando threatened the applicant and the other bodyguards that if they did not kill that political rival, Hernando would kill them.  The applicant refused and went into hiding from Hernando. Details of the applicant’s claim have been summarised by the Board at [5] to [7] of the Board’s Decision.

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  The applicant appealed to the Board.  After a hearing on 23 November 2015, and for reasons set out in the Board’s Decision, the Board on 29 November 2016 dismissed the appeal.  At [27] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The main reasons for that finding are that according to the Country of Origin Information, Hernando was in 2010 the president of the University of Batangas, but was not the Congressman of Batangas in 2009, and was not a candidate of the Congressional Election in 2010.  The applicant failed to explain the discrepancies.  The Board was further satisfied at [44] that there is nothing to show that the government of the Philippines would not provide protection to the applicant.

The Judge’s decision

6.  The applicant filed a form 86 on 10 October 2018.  He did not therein set out any ground for the relief sought.

7.  In his affirmation in support of the leave application filed on 10 October 2018, the applicant exhibited the relevant documents without giving any ground for judicial review.

8.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to extend time for applying for leave for judicial review and dismissed the application for leave for judicial review.  The Judge gave the following reasons at [14] to [27] of the CALL-1 Form:

“ Application out of time

14. It must be pointed out first that the applicant’s intended application for judicial review was made out of time …

…

16. In this case, even just counting from the 3-month time limit for the intended application against the Board’s decision which ended on 29 February 2017, the application was late by almost 1 year and 8 months. The delay in the application against the Director’s decision (assuming it was the applicant’s application) was even longer. The delay was substantial and excessive. The applicant did not request extension of time or give explanation for the delay. I cannot find any good reason for the undue delay. The delay was inexcusable.

Merits of the intended application

17. Nevertheless, I will also consider the merits of the intended judicial review. Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18. In the present case, the Board in fact rejected the applicant’s appeal/petition on the ground that it disbelieved the applicant and found him ‘not worthy of credit’. It disbelieved his accounts of events. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

19. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20. The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affidavit to suggest how the Board or the Director erred in the public law sense.

21. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board and the Director.

22. Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm. The election in 2010 was completed long ago. There is no valid reason why Hernando would still wish to pursue him after so many years.

23. The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

24. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

25. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

26. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

27. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Grounds for appeal

10.  In the Notice of Appeal filed on 11 February 2021, the applicant states that:

“ 1. Failure to consider the country of origin condition info the (COI) information that the authority in my country would not able to protect me from my enemies.

2.   Failure to proper consider my fear, which I had stated in my claim that I would face real problem while I would return to my home country.”

11.  In his skeleton submissions lodged on 17 June 2021, the applicant expands upon the grounds advanced in the Notice of Appeal.  He submits that the Board has failed to make sufficient inquiry into the country of origin conditions, failed to consider that he would face real risk upon refoulement because of fear from his enemies, and that he must have been placed in severe mental distress.  He also submits that his claim is not a personal or private dispute and that the Board and the Director have failed to assess his fear or the risk of being subject to persecution.

12.  The applicant agreed by a letter of 11 February 2021 that the appeal could be heard by two judges.  We heard the appeal on 26 July 2021.

13.  During the appeal hearing, the applicant made no oral submissions.

Discussion

14.  None of the grounds relied upon by the applicant has been raised as a ground for judicial review before the court below.  It is not open to the applicant to raise these matters on appeal for the first time, long after the expiry of the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 524, CAMP 54/2018 at §14(4)). 

15.  In any event, while the grounds complain of alleged errors on the part of the Director and the Board, they do not identify any error on the part of the Judge.  The Judge noted the Board’s view that the applicant was not worthy of credit, and its rejection of the applicant’s factual allegations.  The Judge observed that on those findings, there would be no factual basis in support of any of the applicable grounds.  He refused leave primarily on that basis.  There can be no criticism against the Judge’s decision or reasoning.

16.  There is no merit in the appeal.  We dismiss the appeal.