TOGLE JUN ERNIE DIAZ v. TORTURE CLAIMS APPEAL BOARD

CAMP 191 /2024, [2026] HKCA 369

On appeal from [2024] HKCFI 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 191 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1890 OF 2019)

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J U D G M E N T

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

Background

1.  On 30 January 2024, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 6 August 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 24 September 2024[2].

3.  On 8 October 2024, the applicant filed the present summons with the Court of Appeal for leave to appeal out of time against the judge’s decision of 24 September 2024.  This summons should be treated as a renewed application for extension of time to appeal against the judge’s decision of 30 January 2024 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of the Philippines. He last arrived Hong Kong as a visitor on 26 November 2007 and subsequently overstayed.  He was arrested by the police on 23 May 2009.  He lodged a torture claim on 25 May 2009 which was rejected by the Director of Immigration (“the Director”) on 17 October 2013.  His appeal was dismissed by the Board on 14 May 2014.   

5.  The Immigration Department received the applicant’s non-refoulement claim on 5 November 2013.  His claim was made on the basis that, if refouled, he would be harmed or killed by his enemy because he failed to return the money and the drugs given by the enemy or the money earned in selling them.

The decisions of the Director and the Board

6.  By a Notice of Decision dated 29 November 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds other than torture risk[3], including BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6] as the applicant’s torture claim has previously been rejected.

7.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 9 May 2019. In view of the significant inconsistencies in the applicant’s evidence, the Board found the applicant is not a witness of truth and that he has fabricated his claims.  The Board held he can safely return home and would not face any risk of harm as claimed.  The Board further found he can reasonably relocate within the Philippines.  Therefore, the Board decided that the applicant’s claims are not made out on any of the applicable grounds and confirmed the Director’s decision on 3 July 2019.

The intended judicial review

8.  On 8 July 2019, the applicant filed a Form 86 and an affirmation in HCAL 1890/2019 to seek leave to bring judicial review against the Board’s decision.  He put forward the following grounds for his intended challenge:

(1)     Procedural impropriety in that the Board failed to properly apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of national state obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, but the Board only focused on whether such reliefs showed merely signs of positive improvement;

(2)     Procedural impropriety in failing to conduct sufficient inquiry into the relevant country of origin conditions;

(3)     Procedural impropriety/irrationality in failing to give reasons for its assessment of lack of BOR 3 risk and/or sufficient basis to support a conclusion of lack of BOR 3 risk;

(4)     Error/misdirection in law in failing to take into account the consideration of psychological strain and threats to the applicant personally or threats to kill him made directly to the applicant;

(5)     Procedural impropriety in failing to consider the applicant’s fear that his enemies would still harm him upon refoulement; and

(6)     There was no sufficient basis to conclude that the applicant and his family members would not be at risk of being subjected to torture and/or CIDPT upon refoulement.

The judge’s decision 

9.  The applicant attended the hearing before Deputy High Court Judge Bruno Chan on 18 January 2024.  The judge found none of the applicant’s grounds is reasonably arguable and they are not properly elaborated with the necessary or relevant details or particulars in support.  The judge held there is no error of law or procedural unfairness in the decisions of the Director and the Board.  As the judge concluded there is no prospect of success in the proposed judicial review, he dismissed the leave application on 30 January 2024.

Grounds of appeal

10.  The applicant stated his grounds of appeal in his written submissions which may be summarised as follows:

(1)     The applicant’s life is still in danger and his fear continues of living in his country;

(2)     The Board and the Director failed to take into account and/or give proper weight to the relevant considerations and materials and hence the decisions are illegal;

(3)     The decision maker did not observe the applicant’s fear properly;

(4)     As “ordinary women”, it is hard to survive in his country.

Analysis

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 30 January 2024 and the applicant was late by more than 5 months when he took out the summons at the court below on 6 August 2024.  The applicant explained that he was previously detained by the Immigration Department and was not released until May 2024 so he was only able to seek assistance by then.  He has not provided any explanation for his further delay after he has been released in the period between May and August 2024.  Under these circumstances, the applicant failed to show that the substantial delay is justifiable.  Thus, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The applicant’s grounds are just bare assertions which are not supported by any elaboration or evidence.  He even included a ground concerning the survival of ordinary women in his home country.  The applicant failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Therefore, there is no prospect of success in the intended appeal.

15.  For the above reasons, we refuse to grant extension of time to appeal against the judge’s decision of 30 January 2024 and dismiss the summons filed on 8 October 2024.

[1] [2024] HKCFI 339

[2] [2024] HKCFI 2437

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

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

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

[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.