RE GONCALVES CASTRO CRISTHIAN FELIPE

CAMP 521/2022, [2024] HKCA 597

On appeal from [2022] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 521 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2755/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 31 August 2022 refusing to extend time for the applicant to appeal against his decision dated 17 March 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 16 November 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 31 August 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Colombia.  He entered Hong Kong as a visitor on 19 June 2013, but he overstayed and was arrested by the police for an unrelated offence on 15 March 2018.  Thereafter, he lodged a non-refoulement claim by way of a written signification dated 12 June 2018.

3.  The applicant’s claim was based on a fear of being harmed or killed by loan sharks because he was unable to repay his father’s loans.  The details of the applicant’s claim have been summarised by the Judge at [1] to [3] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 31 October 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing the appeal, the Board found on the facts that it was illogical for the loan sharks to want to kill the applicant by reason of his father’s inability to repay loans, and that the loan sharks would not expend huge money and resources to locate the applicant everywhere in Colombia.  In any event, viable options of internal relocation were available to the applicant to minimise the risk of harm, if any.

The Judge’s decision

6.  The applicant filed a Form 86 on 4 December 2018, seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In his supporting affidavit, the applicant simply stated that he was dissatisfied with the Board’s Decision.

7.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused leave for the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [8] to [12] of the CALL‑1 Form:

“8.  On 4 December 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

9.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

10.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if true would be a localized one and that in which case it would not be unreasonable or unsafe for him to relocate to other part of Colombia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.  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.

12.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The present application for extension of time to appeal

8.  The applicant’s last known address at the time of the Judge’s decision was at the Castle Peak Bay Immigration Centre (“the Centre”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Centre on 17 March 2022, but this was returned undelivered.  On 25 March 2022, the Immigration Department informed the court that the applicant’s address was at Leighton Road, Causeway Bay (“the Address”).  A copy of the CALL‑1 Form was forwarded to the applicant on 30 March 2022 at the Address, which was also returned undelivered.

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 17 March 2022.

10.  The applicant thereafter took out a summons in the Court of First Instance on 20 July 2022 seeking extension of time to appeal, in which his address was stated to be the Address.  In the summons and in his supporting affidavit filed on the same date, he claimed that he did not receive the CALL-1 Form in time.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 31 August 2022[6].

12.  By a summons filed on 7 December 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on 31 August 2022, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 17 March 2022. Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 31 August 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 17 March 2022, by which leave for judicial review was refused.

13.  In the summons and his supporting affirmation, the applicant asked this court to extend time for his appeal as the Judge’s decision was “lost in post”.

14.  In breach of the directions made by the Registrar of Civil Appeals, the applicant lodged his written submissions late by 7 days.  Taking into consideration the applicant’s explanation at p.6 of his submissions that the delay was due to his hospitalisation for COVID-19, this court is prepared to consider those submissions on this occasion.  In those submissions, the applicant referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s decision was sent to the last known addresses of the applicant, i.e. at the Centre and at the Address, but were returned undelivered. However, it was incumbent upon the applicant to notify the court of any change of address as soon as possible, the date(s) of his detention at, and release from, the Centre (as well as his move to other addresses, including the Address), and any consequences of having failed to do so lie with him.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the Judge’s decision.

17.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

19.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

20.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

21.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 7 December 2022 is accordingly dismissed.