RE BELZA RODOLFO UMEREZ

CAMP 60/2023, [2024] HKCA 639

On appeal from [2022] HKCFI 1157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 1945/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 22 April 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 24 August 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 8 November 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of the Philippines.  According to the Director, he entered Hong Kong as a dependant in 2014 and was permitted to remain until 27 April 2016.  After the expiry of his dependant visa, the applicant lodged a non-refoulement claim in writing and also by way of an undated written signification, which was received by the Immigration Department on 21 June 2017.  It is not clear whether the applicant in fact entered Hong Kong as a visitor but this is not an issue germane to this appeal.

3.  The applicant’s claim was based on a fear of being harmed or killed by his neighbour Romeo and/or members of the New People’s Army (“NPA”) (of which Romeo’s brother was a member).  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 29 May 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that the applicant’s evidence, on which material aspects of his claim was based, was incredible.  The Board also found that notwithstanding some truth in his conflict with a man named Romeo, the Board refused to accept, inter alia, that Romeo had a brother who is in the NPA nor that the applicant faced any appreciable risk of serious or significant harm whether from Romeo or from his brother, or indeed, from the NPA generally.

The Judge’s decision

6.  The applicant filed a Form 86 on 14 September 2018 seeking to judicially review the Board’s Decision.

7.  In his supporting affidavit, the applicant merely stated, without particulars, that the Board “disregarded [his] dangerous situation”.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [14] of the CALL‑1 Form:

“9.  On 14 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 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.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 65 – 80 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.  

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

13.  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.

14.  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.”

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at Johnston Road, Wan Chai (“the Johnston Road Address”).

10.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Johnston Road Address on 22 April 2022, but it was returned undelivered and marked ‘no such person’.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 22 April 2022.

12.  The applicant thereafter took out a summons in the Court of First Instance on 25 October 2022 seeking extension of time to appeal, in which his address was stated to be at the Castle Peak Bay Immigration Centre (“the Centre”).  In his supporting affirmation filed on the same date, he merely stated that he was unrepresented and had no means to instruct a “private lawyer”.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 3 February 2023[6].

14.  By a summons filed on 9 February 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affidavit, the applicant merely asked this court to extend time for his appeal.

15.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  He is therefore deemed to have abandoned his right to rely on the same.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Johnston Road Address, but was returned undelivered.  However, it was incumbent upon the applicant to notify the court of any change of address as soon as possible, including that of the Centre (and the date(s) of his transfer to, and detention at, the Centre), and any consequences of having failed to do so lie with him.  In any event, the applicant has proffered no reason or explanation for the delay in bringing the intended appeal, nor has he explained how or when he had come to learn of the Judge’s decision.

18.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay. 

19.  On 19 July 2023, the applicant filed a “Request for Dismissal of Appeal”, apparently seeking a dismissal of “the appeal” filed on 9 February 2023 (being the date of filing of the present summons) (“the Request”).  No explanation whether in the form of an affirmation or written submissions was given for the Request.  By reference to the date of 9 February 2023 mentioned therein, it may be inferred that the Request was in effect the applicant’s request for dismissal of the present summons.

20.  In the circumstances and in light of the Request, there is no reason why the present application should not be dismissed.  We have nonetheless proceeded to consider the merits of the intended appeal.

21.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

22.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 9 February 2023 is accordingly dismissed.