RE PRADO DEXTER PASCUAL

CACV 416/2023, [2024] HKCA 555

On Appeal From [2023] HKCFI 3164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 416 OF 2023

(ON APPEAL FROM HCAL NO 1567 OF 2019)

____________________

____________________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 December 2023 ([2023] HKCFI 3164) (“the Leave Decision”) refusing to grant him leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 8 May 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 August 2018.

2.  On 15 December 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of the Philippines.  He last arrived in Hong Kong on 30 September 2008 as a visitor with permission to remain as such, which was extended up to 28 October 2008 when he did not depart and instead overstayed.  He was arrested on 18 January 2009 when he subsequently raised a torture claim with the Immigration Department which was later rejected on 31 May 2012.  He then raised his non‑refoulement claim on 24 January 2013 on the basis that he would be harmed or killed by some college fraternity students in revenge for the death of one of their members in a fight in which the applicant was involved while in college.  Details of the applicant’s claim were summarised by the Judge at [1] ‑ [3] of the Leave Decision.

4.  By a Notice of Decision dated 23 August 2018 (“the Director’s Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds other than torture risk[1], namely, BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 8 May 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [7] of the Leave Decision:

“7. In its decision the Board accepted the Applicant’s claim of being involved in a fight between student fraternities in college that led to the death of a student but found no evidence that the Applicant had been so targeted for revenge especially when he was able to continue living in the Philippines for more than one year without incidents before he left the country that it is not accepted that upon his return to his home country after all these years that he would face any risk of harm from his fellow students or from anyone for whatever reason that it concluded that in the absence of any official involvement that state or police protection would be available to the Applicant if so needed upon his return to the Philippines that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.  On 10 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of intended review was given by the applicant in his Form 86 or supporting affirmation.

7.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 7 December 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“10. In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 29 - 44 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

11. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of the Philippines, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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.

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

THIS APPEAL

8.  In his Notice of Appeal filed on 15 December 2023, the applicant only stated:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.” (sic)

9.  Contrary to the directions of the Registrar of Civil Appeals dated 15 December 2023, the applicant did not lodge any written submissions.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In our view, the applicant’s appeal lacks substance. He fails to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  His appeal is plainly a non-starter and must fail. In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.