JUNILLER JOEL PUTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 208/2024, [2025] HKCA 68

On Appeal From [2024] HKCFI 1680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 208 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1700 OF 2019)

____________

____________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K.W. Lung (“Judge”) dated 9 July 2024[1] refusing to grant leave for the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 13 June 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 19 March 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of the Philippines born in 1972. He entered Hong Kong as a visitor on 26 February 2015 and was permitted to stay until 27 February 2015. He overstayed and surrendered to the Immigration Department on 11 March 2015. On the same day, the applicant raised a non-refoulement claim on the ground that he would be harmed or killed by a creditor as a result of his inability to repay the loan, if he was refouled to the Philippines.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] By a notice of decision dated 19 March 2018, the Director rejected the claim.

4.  The applicant appealed to the Board against the Director’s decision. The Board considered all the documents and materials and the nature of issues raised, and was satisfied that the appeal could justly be determined without an oral hearing. In its decision dated 13 June 2019, the Board dismissed the appeal and affirmed the decision of the Director. The Board’s reasoning was summarised by the Judge at [11] to [13] of the Form CALL-1:

“ 11. The applicant appealed the Director’s Decision to the Board. The Board considered that the appeal can be justly determined without a hearing and the case was therefore proceeded on such basis [26]-[27].

12. The Board noted that there had not been any severe pain or suffering inflicted on the applicant and that the current matter was purely a private money dispute with no state involvement. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [6]-[23], [40]-[58]. Furthermore, state protection and internal relocation would be available to the applicant taking into account the country of origin information [49]-[52], [59]-[61].

13. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.”

The Judge’s decisions in the court below

5.  On 20 June 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision. The applicant’s grounds included general statements of the Board being in breach of procedural fairness, his complaint that he was not given an oral hearing or invited to make written submissions in the absence of an oral hearing, and that the Board relied on unofficial or outdated sources of information. In the supporting affirmation, the applicant repeated the grounds attached to his Form 86.

6.  The Judge considered the application on the basis of the documents alone as the applicant did not appear at the oral hearing scheduled on 6 May 2024. On 9 July 2024, the Judge issued his decision to refuse to grant leave to apply for judicial review. The reasons were set out in [16] to [22] of the Form CALL-1 as follows:

“16. 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).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18. 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.’

19. The applicant complained that he was not given a hearing before the Board. Under the law, the Board was entitled to make its decision of not holding a hearing if the Board, having taken into consideration of all the relevant circumstances, came to a conclusion that it would not be unjust to the applicant[1]. The Board had considered the Court of Appeal’s decision in ST v Betty Kwan and Others CACV 115/2013 [2014] 4 HKLRD 277. It came to its views:

‘ 27. Further I have considered the general principles and circumstances under which an oral hearing is required as set out in ST v Betty Kwan and Others, to the facts or law which requires an oral hearing to resolve. I am also ever mindful of the potential consequences of my decision. In my view there is no procedural unfairness to the Appellant at all due to the lack of an oral hearing. I proceeded on that basis.’

20. Here, the Board did not raise the issue of credibility of the applicant’s evidence. Having accepted his evidence, it came to the conclusion that he will not be subjected to any of the applicable risks if he returns to his own country. On this basis, the Board dismissed the applicant’s appeal. The Board was entitled to make such finding.

21. The applicant has not been able to show that the Board’s decision not to hold a hearing had caused any unfairness to him. The fact that the Board did not advise him to make a written submission is not a valid ground because to date, the applicant has not raised any prejudice to him. He had the chance to make his written submissions in his notice of appeal. Ground (1) fails. Ground (2) is only a general assertion without condescending to any evidence in support of it. This Ground fails too. There is no valid reason from the applicant to challenge the Board’s Decision.

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

7.  Around two weeks after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons on 9 August 2024 together with a supporting affirmation to apply for extension of time for filing the notice of appeal. In his affirmation, the applicant stated that he did not receive the order and judgment within 14 days and should be given a reasonable opportunity to present his case. On 23 October 2024, the Judge issued his decision in writing refusing to extend time for appeal on the grounds that the applicant was deemed to have received the Court’s decision and that he had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

8.  By summons filed on 28 October 2024, the applicant made an application for leave to appeal against the order of the Judge dated 9 July 2024. We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 9 July 2024 refusing leave for judicial review.

9.  In the applicant’s supporting affirmation, he stated that he did not receive the Court’s decision as it was lost in the post and he could only get a copy of those documents after searching the court file.

10.  The applicant has lodged written submissions in which he recited general legal principles related to high standards of fairness and Wednesbury unreasonableness and submitted that the Board did not properly assess his credibility, but did not provide any particulars elaborating on these general assertions or explaining how they apply to his case.

11.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late for about 2 weeks when he filed his initial summons on 9 August 2024. In his supporting affirmation, the applicant stated that he did not receive the sealed order and Form CALL-1 as they were lost in the post and that he could only get a copy of those documents after searching the court file. As the applicant did not provide any evidence to support his explanation that the court documents were lost in the post and the court’s record showed that they were not returned unclaimed. In these circumstances we do not accept his bare assertions, and the court will not extend time unless there are real prospects of success in the intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had actually accepted the applicant’s alleged facts as presented and proceeded to consider his case against the relevant risks. The Board rejected the applicant’s non-refoulement claim because it considered that the past incidents did not reach the requisite level of harm; there was no real risk of serious harm upon refoulement; there was no state involvement; reasonable state protection was available; and internal relocation to Illoilo City or Cebu was a viable option. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. Contrary to the applicant’s complaint that the Board did not properly assess his credibility, the Board did not challenge the credibility of the claims presented by him. The applicant has failed to establish or even identify any arguable grounds for judicial review.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

17.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 28 October 2024 is accordingly dismissed.