RE SANTOS RENATO MANALO

CAMP 457/2022, [2023] HKCA 1157

On Appeal From [2022] HKCFI 2250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 457 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1050 OF 2019)

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J U D G M E N T

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

1.  On 3 August 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 19 September 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 21 October 2022.

3.  On 3 November 2022, the applicant filed a summons in CAMP 457/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Director’s and the Board’s decisions. We will treat the present application as an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 3 November 2022, the applicant lodged written submissions on 14 November 2022. On 12 December 2022, the applicant lodged written submissions again, the contents of which were similar to those lodged previously.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing. We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of the Philippines. He entered Hong Kong on 25 January 2010 as a visitor and was permitted to stay until 8 February 2010. He overstayed and surrendered to the Immigration Department on 10 February 2010. On 12 March 2010, he raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was later taken as a non-refoulement claim. He alleged that if refouled, he would be harmed or even killed by some unknown men since he witnessed the murder of a political leader. The factual background of this case was succinctly summarised by the Judge at [4] of the JR Decision ([2022] HKCFI 2250).

7.  By a Notice of Decision dated 31 March 2015, the Director of Immigration (“the Director”) decided against the applicant’s claims. The Director’s decision covered the BOR 3 risk[1], the torture risk[2] and the persecution risk[3] (“the Director’s 1^st Decision”).

8.  The applicant appealed the Director’s 1^st Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant attended an oral hearing on 1 June 2016 and by its decision dated 15 March 2017 (“the Board’s 1^st Decision”), the Board dismissed the applicant’s appeal. For the reasons set out at [14] – [32], the Board found that it was inherently incredible that the alleged unknown men would still have been prowling around the applicant’s house for 7 years after the murder of the political leader, which occurred in October 2009, and if they had any real intention to harm or kill the applicant, there were ample opportunities to do so, but the fact was that no harm was ever inflicted on the applicant or his family members. Even taking the applicant’s case to its highest, he had never suffered any physical harm or injury, and it was not believed that he was a target of attack. As such, his fear of ill-treatment is highly unlikely to materialize. Further, the applicant’s evidence on whether he reported the matter to the police was inconsistent and unreliable, and the certificate from the police station which he produced did not support the applicant’s contention. In any event, it was found that reasonable state protection should be available and internal relocation was also a viable option ([34] - [41]). For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

9.  By a Notice of Further Decision dated 2 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claims in respect of the BOR 2 risk[4] (“the Director’s 2^nd Decision”).

10.  The applicant also appealed against the Director’s 2^nd Decision to the Board and attended an oral hearing on 18 March 2019. At the hearing, the applicant told the Board that he learnt from his youngest son that there were unknown men who kept wandering around their house at night, and although the matter was reported to the police, no thorough investigation was made by the police. The Board adopted the reasons of its earlier decision and found that the applicant’s claim on BOR 2 risk was not substantiated, and by its decision dated 4 April 2019, the appeal was dismissed (“the Board’s 2^nd Decision”).

Application for leave to start judicial review

11.  On 17 April 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s 2^nd Decision. He did not provide any grounds for relief in his Form or the supporting affidavit save for saying that he was against the Board’s 2^nd Decision.

The JR Decision

12.  The applicant did not request an oral hearing and the Judge disposed of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [16] - [22] of the JR Decision:

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decisions 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 has not raised any valid ground to challenge the Board’s Second Decision.

20. The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 19 September 2022 for an extension of time to appeal. That was dismissed by the Judge on 21 October 2022. Hence, the Summons to this court.

Discussion

14.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).

15.  As for (1), the applicant was late by 18 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance, even after taking the summer vacation into account: s.31(1) of High Court Ordinance (Cap.4). His delay was not insignificant although not very serious.

16.  As for (2), the reasons for the delay, the applicant asserted in his supporting affidavit in the CFI that he received the court’s mail late as he did not have the key to the letterbox which was kept by his landlord. In the absence of any details on any arrangements made with his landlord to receive mail, or of when and how he did receive the JR Decision, we do not accept it is a good reason for his delay.

17.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision either in his summons or in his affidavit.

18.  In his written submissions, he claimed that his life would be in danger if he returns to his home country, and the lower court did not consider the applicable grounds properly but only relied on prima facie evidence rather than circumstantial evidence based on his statement.

19.  It is clear from the Board’s 1^st Decision that the applicant’s case was rejected on the issue of credibility. The Board was entitled to find the facts that it did, and the court would only intervene when there are valid public law grounds. We see none in this case.

20.  We are also satisfied that the Judge had reviewed the Board’s decisions with rigorous examination and anxious scrutiny and had rightly dismissed the leave application. We find nothing amiss in the JR Decision.

21.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 3 November 2022.