RABANG KEYVER VERONIA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 459/2021

[2022] HKCA 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 459 OF 2021

(ON APPEAL FROM HCAL NO 2999 OF 2018)

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J U D G M E N T

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

1.  By a summons dated 15 October 2021, the Applicant applied to this Court for “leave to appeal” out of time against the decision made by Deputy High Court K W Lung (“the Judge”)  on 22 May 2020 refusing leave to the Applicant to apply for judicial review. On 11 August 2021, the Judge refused to grant the Applicant an extension of time to appeal.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.  The Applicant is a national of the Philippines.  He came to Hong Kong on 15 October 2016 as a visitor and overstayed.  He surrendered to the Immigration Department on 7 November 2016 and lodged his non-refoulement claim on 10 April 2017.  He claimed that if refouled, he would be killed as he was a drug user and as a result of the brutal anti-drug campaign of President Duterte which targeted drug-users and traffickers.  He was once addicted to drugs in the Philippines but had quitted.  However, he was wrongly accused of being a drug user by police.  He was detained in the police station and was hit by a baseball bat.  His arms were hit by a water dispenser.  His brother-in-law who was influential helped to secure his discharge from the police.  His other cousins, who were drug pushers, were sentenced to imprisonment. He was worried that he might not be assisted again.  Details of the Applicant’s claim have been summarised by the Judge at §§1-2 of the CALL-1 Form ([2020] HKCFI 887).

4.  By a Notice of Decision dated 27 October 2017, the Director of Immigration (“the Director”)  rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.  The Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”).  On 28 November 2018, the Board rejected the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”).  The Board found that the Applicant’s evidence was not believable because of major discrepancies with no explanation for numerous and repeated inconsistencies, and the version of his account was inherently implausible (§§50-52).  Having considered the evidence, the Board concluded that the Applicant’s claim for non-refoulement protection failed.

THE JUDGE’S DECISION

6.  The Applicant subsequently filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.  On 22 May 2020, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§15-18 of Form CALL-1, the Judge stated as follows:

“[15] The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

[16] I shall deal with his grounds.

[17] He has confirmed that he had no problem with the hearing bundle for the appeal as he could read the bundle himself. To say that the Director did not have another screening for BOR 2 risk is entirely wrong as BOR 2 risk was assessed in the same assessment. All other grounds do not sustain as they are either opinions or irrelevant to the Board’s finding of the facts.

[18]  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

THE JUDGE’S EXTENSION DECISION

8.  Under Order 53, Rule 3(4)  of the RHC, the Applicant may appeal against the Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed or served by the Applicant within the 14-day period.

9.  The Applicant filed a summons dated 15 June 2020 applying for extension of time to appeal.  In his affirmation in support of his application, he said that he did not receive the Court’s decision in time.  He also said that he did not understand the procedure and had to obtain his friend’s assistance as he has no means to engage a lawyer himself (see [2021] HKCFI 2208 at §5).

10.  The Judge focused on the prospect of success of the Applicant’s intended appeal.  The Judge found that the Applicant’s grounds did not assist him in his application and the Applicant was unable to show that he had any reasonable chance of success in his intended appeal.

11.  Accordingly, on 11 August 2021, the Judge refused to extend time for the Applicant’s intended appeal and dismissed his application.

THIS APPLICATION

12.  By a summons taken out on 15 October 2021, the Applicant applied to this Court for “leave to appeal” out of time against the decision of the Judge dated 22 May 2020.  In his summons and supporting affirmation filed 19 October 2021, the Applicant stated that his grounds of appeal were that the Judge was wrong in law in holding that “there was no state acquiescence or involvement”, and the Judge failed to provide detailed reasoning in support of his decision.  Pausing here, it may be noted that the Judge did not in fact make any finding in relation to the issue of state acquiescence or involvement in his decision.

13.  In his 4-page written submissions filed 25 October 2021, the Applicant makes some generic submissions on the general principles of law relating to non-refoulement claims.

DISCUSSION

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

15.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The prospect of success of the intended appeal is important: the court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

17.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

18.  Although a delay of 10 days may not be substantial, the Applicant has not provided any good explanation for the delay. In any event, regarding the chances of the appeal, the Applicant has only put forth generic submissions on law in his written submissions.

19.  The 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: see Re Kartini [2019] HKCA 1022.  The Applicant’s grounds are bare assertions and he has not provided any particulars of, or shown, any errors in the Judge’s decision to refuse to grant leave to apply for judicial review.  

20.  There is no reasonable reasonable prospect of success in the Applicant’s intended appeal.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the Applicant’s summons of 15 October 2021 is dismissed.