RE REYES ENRICO KARASIG

CAMP 307/2019

[2020] HKCA 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 307 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 967 OF 2017)

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J U D G M E N T

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

Introduction

1.  On 15 July 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 1343), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused 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 (“the Board”) dated 29 August 2017 (“the Board’s BOR 2 Decision”).

2.  In the Board’s BOR 2 Decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 6 February 2017 (“the Director’s BOR 2 Decision”) rejecting the applicant’s non-refoulement claim based on BOR 2 risk[1].

3.  On 10 September 2019, the applicant sought extension of time to appeal the Deputy Judge’s Decision.  Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the deadline for the applicant to bring an appeal against the Deputy Judge’s Decision expired on 29 July 2019.  He was thus 12 days out of time (after discounting the month for August 2019 on account of the Court’s summer vacation).

4.  On 25 November 2019, the Deputy Judge refused to grant extension of time to the applicant [2019] HKCFI 2732 (“the Deputy Judge’s Extension of Time Decision”).

5.  By a summons dated 6 December 2019, the applicant renewed his application before this Court.  We will deal with the application on paper.

Background

6.  The applicant is a national of the Philippines.  He last entered Hong Kong on 12 November 2005 on the strength of his passport and was allowed to remain until 26 November 2005.  He overstayed and was arrested by the police on 17 October 2008.  He lodged a torture claim on 20 October 2008.

7.  The applicant’s claim was based on the fear that, if he was to return to the Philippines, he would be harmed or killed by Juanito Arellano (“JA”) and his associates who were affiliated with the New People’s Army (“NPA”).  The factual background was summarized at paragraphs 5 - 24 of the Director’s decision dated 10 March 2015 (“the Director’s First Decision”) and paragraphs 2 - 3 of the Board’s decision dated 29 November 2016 (“the Board’s First Decision”).

8.  Briefly stated, the applicant claimed that JA procrastinated in paying an outstanding balance of the purchase price of a piece of land sold by the applicant to JA.  In around September 2005, when the applicant asked JA for repayment, JA verbally threatened the applicant with death but no violence was involved at that time.  Three days later, the applicant was told by his friends that JA was affiliated with NPA.  Around a week after the threat, the applicant was told by his neighbour that two unknown men came to find the applicant.  Out of fear, he left his home country.

Director’s Decisions and the Board’s Decision 

9.  Apart from the Director’s dismissal on the applicant’s non‑refoulement claim on the BOR 2 risk, the Director also assessed and dismissed the applicant’s non-refoulement claim on the BOR 3 risk[2], persecution risk[3], and torture risk[4]. The reasons for dismissal were set out in the Director’s First Decision.

10.  The applicant’s appeal against the Director’s First Decision was dismissed by the Board with reasons set out in the Board’s First Decision.

11.  The applicant also appealed the Director’s BOR 2 Decision to the Board.  By way of the Board’s BOR 2 Decision, the Board dismissed the appeal.  The Board found that since the applicant did not submit any additional facts, based on the existing documents and by reasons stated in the Board’s First Decision, the applicant failed to establish his non‑refoulement claim on BOR 2 risk.

The Deputy Judge’s Decision

12.  On 28 November 2017, the applicant filed his Form 86 seeking leave to apply for judicial review against the Board’s BOR 2 Decision.  However, he did not advance any grounds of review but simply stated in his supporting affirmation that his life would be in danger if he returned to his home country as the NPA was still active in the Philippines.

13.  The applicant did not request an oral hearing.  Having considered the documents available before him, the Deputy Judge refused to grant leave to the applicant to apply for judicial review against the Board’s BOR 2 Decision.  He set out his reasons at paragraphs 13 - 16 of the Deputy Judge’s Decision:

“13.  As has been repeatedly emphasized by the Court of Appeal, 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 being 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.

14.  In the applicant’s case, in the absence of any additional facts or representation from him which may engage the BOR 2 risk, and even based on his own case both the Director and the Board were entitled to find that he has failed to establish any personal or real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 risk upon his return to the Philippines, and in the absence of any error of law or procedural unfairness in their further decision being identified by the applicant, I do not find any reasonably arguable basis to challenge their findings.

15.  In the premises and having considered the further/second decision 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.

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

Application for extension of time

14.  On 10 September 2019, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.

15.  The Deputy Judge heard the applicant on 16 October 2019.  After the hearing, by way of the Deputy Judge’s Extension of Time Decision, the Deputy Judge refused to grant extension of time to the applicant on the basis that the applicant’s explanation for the delay was unsatisfactory and that, in any event, there was no prospect of success in his intended appeal.

Renewed application to this Court

16.  On 6 December 2019, the applicant renewed his application for extension of time before this Court. In his summons, he listed the Deputy Judge’s Extension of Time Decision as the decision under challenge.

17.  In the supporting affirmation filed on the same date, the applicant argued that he was unrepresented and thus was without legal assistance.  He said that there was a good ground of appeal but he failed to provide any particulars on the said good ground.

18.  In the written submissions lodged on 30 December 2019, he quoted some passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance (Cap 115), and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and the accompanying evidence, as well as other relevant matters of fact within the Board’s knowledge.  However, the applicant did not further elaborate how the section could assist his case.

Legal principles

19.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for extension of time to appeal against the substantive decision of the Deputy Judge, ie, the Deputy Judge’s Decision.

20.  As mentioned, pursuant to Order 53, rule 3(4) of the Rules of the High Court, 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 extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

21.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

22.  In assessing the prospect of success 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 discussed in 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].

23.  For the purpose of this application, we only need to highlight the following salient principles:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, Rule 4(1) of the Rules of the High Court.

Discussion

24.  Although a delay of 12 days was not substantial, the applicant had not provided any cogent explanation before this Court.  In the premises, the applicant has to satisfy the Court that his intended appeal has a real prospect of success before extension of time will be granted.

25.  In our view, the applicant’s intended appeal has no prospect of success, let alone a real one.

26.  First, the only ground advanced by the applicant was that he was without legal assistance.  However, this ground was not argued before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments which have not been canvassed at the court below would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

27.  Second, the applicant’s written submissions also do not assist him. Other than making general and bare assertions that the decision makers did not adhere to the high standard of fairness, the applicant had failed to identify with sufficient particularities as to why the Deputy Judge was wrong in his reasons.  The applicant’s reference to section 37ZT of the Immigration Ordinance is also irrelevant.  These are also not viable grounds of appeal.

28.  Finally, the applicant’s claim that there was a good ground of appeal is a bare assertion without substance.

29.  The intended appeal therefore has no merits at all.  In any event, after reviewing the Deputy Judge’s Decision, we are of the view that the Deputy Judge was right in refusing to grant leave for the applicant to apply for judicial review.

30.  Accordingly, we dismiss the applicant’s summons of 6 December 2019.