RE EDUARDO JAGAME OGABAR alias ANTONIO JR ARANA DELANTE

CAMP 162/2021

[2021] HKCA 1623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 162 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1884 OF 2018)

____________

____________

_________________

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 leave to appeal out of time against the decision of Deputy High Court Judge K W Lung (“Judge”) on 31 July 2020[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 31 August 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 November 2017 rejecting the applicant’s non-refoulement claim.

2.  On 5 May 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 31 July 2020.

Background

3.  The applicant is a Philippines national. He last arrived in Hong Kong on 16 November 2015 and was permitted to remain as a visitor until 30 November 2015. He was arrested for theft on 21 November 2015 and his identity as a returned deportee was discovered. He was convicted of breach of deportation order and sentenced to a total of 26 months’ imprisonment. He lodged a non-refoulement claim by written significations received between February and June 2017.

4.  The applicant’s claim was based on the fear that, if he returned to the Philippines, he would be harmed or even killed by the police in the Philippines because he was a drug dealer, or by motorcycles riding-in-tandem, or by another drug dealer he had previously fought with. The factual background of the claim was set out at [29] to [47] of the Board’s decision.

5.  By notice of decision on 28 November 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 17 April 2018, during which the applicant gave evidence and answered questions from the Board. The Board found that the applicant was not a witness of truth, because his testimony before the Board was fundamentally different from and inconsistent with the evidence he provided in his NCF and during his interviews with the immigration officer. Due to the numerous and significant inconsistencies in nearly all aspects of his evidence, the Board rejected all of the applicant’s factual claims.

7.  The Board concluded that there was no real risk of harm in the event of refoulement, and dismissed the appeal in its decision dated 31 August 2018.

The Judge’s decisions in the court below

8.  On 10 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. He did not set out any ground for judicial review in his Form 86. In his supporting affidavit, the applicant merely stated that he would like to have the Immigration Department’s decision reviewed, as the Director disregarded his dangerous situation.

9.  Following consideration of the documents only, on 31 July 2020 the Judge refused to grant leave for judicial review. The reasons for the refusal were set out in [14]-[18] of the Form CALL-1 as follows:

“ 14. It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13.… …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.’

16. The ground that he has raised in support of this application does not assist him.

17. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

18. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

10.  Over 7 months later, on 12 March 2021, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge. In his summons and supporting affidavit, he explained that he did not receive the judgment within 14 days or a reasonable time to allow him to appeal on time.

11.  The Judge determined that application without an oral hearing. In his decision dated 5 May 2021,[6] the Judge stated that the applicant was unable to show any reasonable prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

12.  On 14 May 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 31 July 2020 refusing leave for judicial review. In his supporting affirmation, he stated that he believed that the Judge erred by not taking all relevant circumstances into account and that the Judge made a biased and erroneous judgment.

13.  The applicant also stated in his affirmation that due to a lack of or insufficient legal and language assistance in the Board and court proceedings, he had been deprived of the opportunity to understand the relevant decisions and to raise proper grounds of appeal. He claimed that he did not understand the court’s orders or court procedures and was told by court staff that there was no time limit for appealing. The applicant stated that neither the Board nor the Judge’s decisions were translated or interpreted to him, that without legal assistance he was unable to understand what he should do about his complaints, and that the Court did not discharge its duty of care towards him as a non-represented litigant who did not fully understand English.

14.  Pursuant to the directions of the Registrar of Civil Appeals on 8 November 2021, the applicant lodged his written submissions on 22 November 2021. In those submissions the applicant submitted that no arrangements had been made to enable him to understand the contents of the judgments given in his case. He claimed that the Judge had failed to take into account his unique circumstances and his lack of language capability. He repeated that while he had language assistance during the hearing before the Board it was not possible for him to understand all the legal jargons.

15.  We consider it appropriate to deal with the application on paper. This application is accordingly determined without a hearing based on the available documents and materials.

Legal principles

16.  Whilst the applicant’s summons seeks an order that the Judge’s order made on 5 May 2021 refusing extension of time to appeal be set aside, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal and we shall approach the present application as such: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3]-[8].

17.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless an extension of time is granted. In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

18.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will still examine if the intended appeal has merits, in terms of whether there is a real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

19.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. 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 advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

20.  In the present case, the applicant’s intended appeal was late by nearly 7 months. The delay is substantial, though in rejecting the application for leave to appeal out of time, the Judge focused on the merits of the intended appeal.

21.  We shall likewise focus on the merits of the proposed appeal. In his supporting affirmation, the applicant did not provide any particulars in support of his arguments that the Judge did not take all relevant circumstances into account and that the Judge gave a biased and erroneous judgment. General assertions without particulars are not effective grounds of appeal.

22.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no valid and properly particularised grounds that point to any error by the Judge, the appeal should be dismissed.

23.  As for the applicant’s arguments regarding lack of or insufficient language and legal assistance, it is of note that the applicant was legally represented and provided with language assistance in relation to his claim before the Director. At the Board hearing, the applicant was assisted by a Tagalog language interpreter. At [5] of its decision, the Board specifically recorded that the applicant “indicated to the Board that he had no difficulties with the quality of interpretation”. As the Board’s decision was based on its assessment of the applicant’s oral evidence at the Board hearing compared with his previous evidence presented to the Director, it is difficult to see how the level of legal or language assistance provided resulted in procedural unfairness. No complaint about the fairness of the Board hearing, whether on account of language assistance or otherwise, was raised in the application for leave for judicial review.

24.  In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law does not mean that legal or interpretation service has to be made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

25.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection due to its adverse finding on his credibility, which resulted in the Board rejecting all of his factual claims. As such, the Board found that there was no real risk of harm in the event of refoulement. These findings were open to the Board on the materials available to it. The court will not interfere with such assessments unless they are vitiated on public law grounds. As mentioned above, no grounds for judicial review were put forward by the applicant.

26.  Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave for judicial review and to refuse extension of time for appeal from his decision.

27.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend time only for a hopeless appeal to be lodged. The summons dated 14 May 2021 is dismissed accordingly.