RE GARCIA DENNIS CASENAS

CACV 432/2024, [2025] HKCA 303

On appeal from [2024] HKCFI 2494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 432 OF 2024

(ON APPEAL FROM HCAL NO. 1971 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Barnes J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 4 October 2024[1] refusing leave to the applicant to apply for judicial review against the decision dated 2 July 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”)  refusing the applicant’s application for the late filing of a notice of appeal against the decision of the Director of Immigration (“the Director”)  dated 13 April 2017 rejecting the applicant’s non-refoulement claim on the BOR 2 risk ground[2] (“the Director’s 2^nd Decision”).

The applicant’s claim

2.  The applicant is a national of the Philippines, aged 43. He entered Hong Kong as a visitor on 13 March 2011 and had overstayed since 28 March 2011. On 29 February 2012, he was arrested by the police and was convicted for overstaying. On 20 March 2012, he lodged his non-refoulement claim on the basis that he will be harmed or killed by the relatives of Raul Leling (“Raul”)  and Leo Malabanan (“Leo”)  as he had witnessed the murder of Leo in which Raul was suspected to be involved.

3.  In gist, the applicant claimed that Leo and Raul were rival candidates in the election of mayor in his hometown, and Leo was murdered on the night of 31 October 2010.  He said the family of Leo wanted to harm him as he refused to testify against Raul, who was suspected to be behind the murder.  At the same time, the applicant feared annihilation from the family of Raul who wanted to prevent him from testifying.  Feared for his safety, the applicant fled to Hong Kong.  The details of his claim were set out at [6] of the Director’s 1^st Decision and at [8] to [18] of the Board’s 1^st Decision.

The Director’s and the Board’s decisions

4.  By a Notice of Decision dated 7 May 2015 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim based on the torture risk[3], the persecution risk[4] and the BOR 3 risk[5] grounds.

5.  The applicant appealed against the Director’s 1^st Decision to the Board. After a hearing on 27 July 2016, the Board dismissed the appeal by a decision dated 9 February 2017 (“the Board’s 1^st Decision”).  By the Board’s 1^st Decision, the Board considered the applicant’s evidence to be unconvincing and generally lacking in credibility, and his answers to the Board’s questions to be vague and implausible.  The Board also found discrepancies in material aspects of the applicant’s claim which undermined the veracity of his claim.  These include his evidence as to who contacted the wife of Leo Malabanan in the aftermath of the incident and his reason for the belated application for lodging the non-refoulement claim.  The Board also found on the applicant’s own account that he had never been harmed or threatened by either of the perceived perpetrator.  The Board thus found there was no future risk of harm or ill-treatment warranting non-refoulement protection under the applicable grounds.

6.  The applicant has not applied for judicial review of the Board’s 1^st Decision.

7.  Subsequently, the Director by a letter dated 27 March 2017 invited the applicant to provide additional information (if any)  by 10 April 2017 for assessing his claim under the BOR 2 risk. The Director did not receive any response or additional information.  By a further decision dated 13 April 2017 (“the Director’s 2^nd Decision”), the Director decided against the applicant’s claim on the BOR 2 risk ground.

8.  The applicant has 14 days to appeal the Director’s 2^nd Decision to the Board.  On 22 May 2017, which was 18 days after the expiry of the 14-day period, the applicant filed a notice of appeal (“NOA”)  in which he also applied for permission to make a late filing of the NOA.  The Board considered the application and by a decision dated 2 July 2019 refused the application to allow the late filing of the NOA (“the Board’s 2^nd Decision”).

The Judge’s decision

9.  By a Form 86 dated 12 July 2019, the applicant applied for leave to judicially review the Board’s 2^nd Decision, without setting out any grounds for review. In his supporting affirmation, he claimed that his “dangerous situation” had been disregarded.

10.  The Judge dealt with the application on paper.  By his judgment dated 4 October 2024, he refused to grant leave to the applicant to apply for judicial review against the Board’s 2^nd Decision.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge gave the following reasons for his decision at [18] to [22] of the CALL-1 Form:

“18. The question before the Court is whether the Board was correct to refuse extension of time for the applicant to file his notice of appeal.

19. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, held that the Board should evaluate all the circumstances of the case with a view to dealing with the application. That is to say, the Board should consider the merits of the case on the evidence and materials available to it.

20. It is clear the Board had considered the merit of the case as the same Board had considered the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk and it had dismissed the applicant’s appeal against the Director’s Decision on those issues. His claim on BOR 2 risk relies on the same facts.

21. His claim on BOR 2 stands no chance of success. The Court of Appeal in in (sic)  Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

‘59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017)  64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016)  at [52].’

22.  Therefore, it is clear that there is no realistic prospect of success in the applicant’s intended application for leave to apply for judicial review of the Board’s Second Decision.”

This appeal

11.  On 15 October 2024, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  The Notice of Appeal reiterated that his dangerous situation had been disregarded.

12.  In his written submissions lodged on 25 February 2025, the applicant put forward the following arguments:

(1)  The Board overlooked the grave danger faced by the applicant and was misguided to believe that the Philippines will abide by the rule of law or to offer him protection.  It will be difficult for him to return to the Philippines as he will face political oppression and threats. 

(2)  The Court should consider whether the assessor (the Board)  fully understand his problems in the context of his country.

(3)  The Board relied on country of origin information and general reports which are inadequate, rendering the assessment erroneous and the procedure problematic.

(4)  The Judge relied on Re Kham Kamal Ahmed [2019] HKCA 377 at [19] of his decision to show that the Board needs to consider the merits of the case in granting extension of time.

(5)  The applicant did not receive any letters (from the Director)  through no fault of his and he should not be punished by being refused an extension of time (by the Board).

13.  At the hearing of the appeal, the applicant informed us that he has a daughter in Hong Kong who was born here in 2016.  He asked to be allowed to stay longer in Hong Kong to take care of her.  He said that because the mother is working as a domestic helper, the daughter will have no one to look after her if he is refouled to the Philippines.   

Our reasons for decision

14.  The Board’s 2^nd Decision refused to allow the late filing of the applicant’s NOA to appeal against the Director’s 2^nd Decision which rejected his claim under the BOR 2 risk ground.  Section 37ZT(2)  and (3)  of the Immigration Ordinance (Cap.115)  (“the Ordinance”)  that was in force at the time the Board’s 2^nd Decision[6] was made provide as follows:

“(2)  The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b)  any other relevant matters of fact within the knowledge of the Board.

(3)  If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.”

15.  This Court has held that regardless of procedural breaches committed by the applicant and the lack of adequate explanation therefor, the Board, in exercising its discretion on whether to allow late filing of a NOA, is obliged to consider the merits of the applicant’s claim: Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430 at [23] to [26]; and Re Castillo Raquel Adona & Anor [2022] HKCA 1053[7].

16.  In the present case, it does not appear from the Board’s 2^nd Decision that it had considered the merits of the applicant’s claim with regard to the BOR 2 risk ground.  Nor did it indicate that it had had regard to any documents or information submitted by the applicant in connection with the matters considered by the Director and the Board in their 1^st Decisions[8]: see Re Sandhu Vinny [2023] HKCA 1261 at [31].  There was also no reference to or consideration of the principles in The Secretary of State for the Home Department v Begum (2016)  EWCA Civ 122[9], which require the Board to evaluate all the circumstances of the case in deciding on whether to allow the late filing of the NOA. 

17.  The Board had only considered the applicant’s reasons for the delay in filing the NOA, and concluded that there were no matters of fact known to him that amounted to special circumstances that would render it unjust to disallow the late filing of the NOA.  This, however, is not the same as giving due and adequate consideration to the merits of the applicant’s claim based on the BOR 2 risk ground.  In our view, the Board’s 2^nd Decision has fallen short of the requirements as set out in Re Khan Kamal Ahmed and Re Qasim Ali.

18.  Accordingly, we do not agree with the Judge’s holding that the Board had considered the merit of the claim in accordance with the principles laid down in Re Khan Kamal Ahmed (at [20] of the judgment).

19.  That, however, is not the end of the matter.  In this case, the applicant did not provide any additional information and material to the Director or the Board for assessment on the BOR 2 Risk ground. The evidence and basis for the BOR 2 risk are therefore identical to those for the previous assessment on the other three applicable grounds.  The Board’s 1^st Decision had rejected the applicant’s evidence and the factual basis of his claim as being incredible.  The applicant has not challenged the Board’s 1^st Decision.  This being the case, there are no supporting facts for the applicant’s claim such that the applicant could not have established an entitlement to non-refoulement protection under the BOR 2 risk ground[10].  The appeal against the Director’s 2^nd Decision is bound to fail.  It also follows that the Board would also be bound to disallow the late filing of the NOA because the merits of the applicant’s claim could not have amounted to special circumstances rendering it unjust not to allow the late filing.

20.  In the circumstances, the court hearing the intended judicial review will inevitably refuse to grant any relief as it is futile to do so.  As there is no realistic prospect of relief being granted in the intended judicial review, leave to apply for judicial review ought not to be given. 

21.  The applicant argued that it was not his fault that he did not timeously receive the letter (which we take it to mean the Director’s 2^nd Decision)  and he should not be punished and his late filing application should not have been refused.  As repeatedly held by this Court, an application for leave for judicial review is not a rehearing of the appeal to the Board and the Court’s role is not to act as an avenue of further appeal from the Board.  The Board, as it is entitled to, did not find his explanation satisfactory as being no more than bare assertion.  The applicant has not identified any error or basis to challenge the Board’s finding in this regard. There is no proper basis for the Court to interfere. 

22.  The applicant also stated in his submissions that the Board had neglected the danger he would face and its assessment was erroneous, having relied on inadequate COI.  This is obviously a reference to the Board’s 1^st Decision, which the applicant has not sought to challenge by way of judicial review and the time for doing so has long lapsed. It is not open to the applicant to do so in this appeal.  In any event, it is well-established that 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 as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. The primary finding in the Board’s 1^st Decision is that the evidence and factual basis of the applicant’s claim are not credible.  The applicant’s unparticularised assertions in his submission do not afford a proper basis for the Court to disturb the finding of the Board.

23.  As to the applicant’s new family in Hong Kong, while we understand his wish to be able to look after his young daughter, this is not a relevant consideration in assessing his entitlement to non-refoulement protection.  Neither is this relevant to the issues in this appeal.   

24.  Having considered the materials before us and the submissions of the applicant, we agree that the intended judicial review has no reasonable prospect of success, and that there is no proper basis for granting leave to apply for judicial review.  Accordingly, this appeal is dismissed.