RE DALOPE RICHARD CRISTOBAL

CAMP 143/2021

[2021] HKCA 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 143 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2153 OF 2018)

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J U D G M E N T

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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 Bruno Chan (“Judge”) on 24 August 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 2 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 15 February 2018 rejecting the applicant’s non-refoulement claim.

2.  On 2 March 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 24 August 2020.

Background

3.  The applicant is a Philippines national. He arrived in Hong Kong on 7 August 2013 and was permitted to remain as a visitor until 21 August 2013. He did not depart, and overstayed. The applicant surrendered himself to the Immigration Department on 28 July 2015. He raised his non-refoulement claim on 3 August 2015.

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 a gang of drug dealers, because he had refused to sell drugs for them. He also claimed that he was at risk of harm from the authorities in Manila because he was on a list of people wanted by the police to be interviewed in relation to drug activities. The factual background of the claim was set out in detail at [34] to [48] and [54] of the Board’s decision.

5.  By notice of decision on 15 February 2018, 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 9 July 2018, during which the applicant gave evidence and answered questions from the Board. Due to the vagueness in his factual account as well as aspects of his evidence that the Board considered to be implausible (eg that he did not know the surnames of the drug dealers in question), the Board found that the applicant was not a credible witness. During the hearing, the Board had raised its concerns with regard to the applicant’s credibility and perceived gaps in his evidence, but found that the applicant’s explanations were unconvincing. As a result, the Board rejected most of the applicant’s factual account.

7.  The Board concluded that there was no real risk of harm in the event of refoulement. During the hearing, the Board expressed its preliminary views that reasonable state protection was available and internal relocation was viable, and gave the applicant an opportunity to respond, but ultimately the Board made no findings as to state protection and internal relocation. The Board dismissed the applicant’s appeal in its decision of 2 October 2018.

The Judge’s decisions in the court below

8.  On 8 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his Form 86, the applicant raised a number of grounds for judicial review, summarized by the Judge at [8] of the Form CALL-1.

9.  Following a hearing on 3 June 2020 at which the applicant appeared before the Judge, on 24 August 2020 the Judge gave his decision refusing to grant leave for judicial review. The reasons were set out in [8]-[15] of the Form CALL-1 as follows:

“ 8. On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and putting forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator wrongly took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

9. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

12. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

13. Essentially his claim was rejected by the Board on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 75-84 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.

14. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim 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.

15. 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.”

10.  On 21 September 2020, the applicant took out a summons to seek an extension of time to appeal against the said decision of the Judge. In his summons, he explained that he did not receive the judgment on time.

11.  The Judge held a hearing for the summons on 16 December 2020, which the applicant attended. In his decision dated 2 March 2021,[6] the Judge noted at [4]-[5] that the intended appeal was late by two weeks which was not a substantial delay, and thus proceeded to dispose of the summons primarily with reference to the merits of the intended appeal.

12.  The Judge noted that the applicant did not provide any proper or valid draft or proposed grounds of appeal, or any particulars of alleged errors in the decision, or why it might be reasonably argued that the decision was unfair or unreasonable. In the end the Judge did not see any prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

13.  On 5 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 24 August 2020 refusing leave for judicial review. In the summons and affirmation filed on the same date, the applicant stated that his intended appeal was out of time because he did not receive the judgment within 14 days due to the judgment being lost in the post. However, he still did not put forward any proposed grounds of appeal.

14.  The applicant lodged his written submissions on 6 July 2021. Those submissions mostly consist of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.

15.  At paragraph 2(1) of his submissions, the applicant stated that the Board erred in approaching the matter by simply trying to see whether it could find fault with the Director’s decision. The applicant argued that the Board failed to scrutinize the Director’s decision and that it was a general practice of the Board to not question or find fault with the Director’s decision. At paragraph 2(2) of his submissions, the applicant argued that the Board should have but did not consider country conditions.

16.  The applicant did not provide any details or particulars in support of his appeal or as to any specific alleged errors by the Judge.

Legal principles

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 reasonable prospect of success in persuading this Court to reverse the decision of the judge: Re Saqlain Muhammad [2018] HKCA 346.

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 2 weeks. As the Judge said, the delay was not substantial. The crucial factor for the present application is therefore whether the intended appeal has any reasonable prospect of success.

21.  As mentioned above, the applicant did not advance any grounds of appeal in his summons, and has failed in his submissions or other documents to provide any particulars in support of his arguments or as to any specific errors in the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

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 simply no such grounds advanced that point to any error by the Judge, the appeal should be dismissed.

23.  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 most of his factual account and concluding that there was no real risk of harm in the event of refoulement. These findings are open to the Board on the evidence. The court will not interfere with such assessments unless they are vitiated on public law grounds. The Judge has explained why in his view the applicant has failed to show any prospects in the intended judicial review.

24.  The points raised in the applicant’s submissions wholly fail to engage with the Board’s reasons for rejecting his claim, as well as with the Judge’s reasons for refusing leave for judicial review. The applicant has failed to pinpoint any specific error in the Judge’s decision of 24 August 2020.

25.  Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there was no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

26.  For these reasons, we do not see any prospect of success at all in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons dated 5 May 2021 is accordingly dismissed.