BRAVO ROLDAN GUISINGA v. TORTURE CLAIMS APPEAL BOARD

CAMP 106/2022

[2022] HKCA 1105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 106 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 268 OF 2019)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 4 November 2021, Deputy High Court Judge Suffiad refused the applicant’s application for leave to seek judicial review against the decisions concerning his non‑refoulement protection claim[1].

2.  On 25 February 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by Deputy High Court Judge To as the applicant has no valid explanation for the delay and no arguable ground of appeal[2].

3.  On 14 April 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.  The applicant is a national of the Philippines. He is 40 years old. He came to Hong Kong as a visitor on 13 January 2016. He subsequently overstayed and surrendered to the Immigration Department on 15 February 2016. He lodged his non-refoulement claim on 11 April 2017 on the basis that he will be harmed or killed by the New People’s Army (“the NPA”) if he returns to the Philippines.

5.  By a Notice of Decision dated 26 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Torture Claims Appeal Board (“the Board”). He attended the hearing before the Board on 12 July 2018. The Board found that the material allegations of the applicant were not supported by evidence. The applicant was given the opportunity to address the issue but he had been evasive and declined to give further information at the hearing. The Board observed that no one from the NPA had ever come to harm or threaten the applicant during the five years’ time after he returned to the Philippines and before he came to Hong Kong. The Board considered that the feared risk from the NPA asserted by the applicant is just his own speculation. In the absence of past ill-treatment, the Board further found there is no substantial ground to believe that there will be foreseeable and real risk of harm to the applicant in the future. Moreover, there is no evidence to show that the applicant has suffered physical and/or mental suffering of the requisite severity or that the state of the Philippines is unwilling or unable to afford protection to the applicant. Therefore, the Board decided that the applicant failed to establish his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 16 November 2018.

The judge’s decision

7.  On 10 January 2019, the applicant filed a Form 86 and supporting affirmation to apply for leave to bring judicial review against the decisions of the Director and the Board. The applicant only stated that his life is still in danger in the Philippines without stating any specific grounds against the Director or the Board for his intended challenge.

8.  DHCJ Suffiad considered the leave application on paper as the applicant did not request for an oral hearing. The judge considered it unnecessary to delve into the Director’s decision as it was superseded by the Board’s decision after the applicant pursued his appeal to the Board, hence the Director’s decision is no longer susceptible to judicial review (Re Moshsin Ali [2018] HKCA 549). The judge found no error of law, procedural unfairness or irrationality in the Board’s decision. He concluded that the applicant failed to show any realistic prospect of success in his intended judicial review and dismissed the leave application on 4 November 2021.

Grounds of appeal

9.  The applicant stated his intended grounds of appeal in the summons and affirmation filed on 14 April 2022 as follows:

(1)  The judge was wrong in accepting the Board’s finding.

(2)  The judge failed to consider all applicable grounds of non-refoulement claims, in particular the ground under BOR 2.

(3)  The applicant will face hardship if he returns to his country as his life is still in danger in his country.

10.  His contentions stated in his written submissions may be summarised as follows:

(1)  High standards of fairness are required on the part of the decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the application without properly assessing the credibility of the applicant.

Analysis and disposition

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 4 November 2021. The applicant took out his summons in the court below on 15 December 2021. He was late for nearly one month. He explained that he was late because he only received the order from LG1 of the High Court on 15 December 2021.

13.  The decision of DHCJ Suffiad was sent to the applicant by post on 4 November 2021[7]. It is noted that the address stated in the application for extension of time filed with the court below[8] is different from the address previously stated in the Form 86. However, the applicant has not filed any notice of change of address informing the court of his new address. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Under these circumstances, the applicant’s delay is not justifiable. Therefore, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments previously advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  The applicant’s grounds and submissions in the present application are just bare assertions without evidence in support. In particular, he did not give any elaboration as to why the judge was wrong in accepting the Board’s findings and did not put forward any evidence to refute the Board’s findings.

17.  As for the ground regarding the failure to consider the applicable grounds in non-refoulement claim, it is well established that the assessment of evidence and risk of harm is primarily within the province of the Board (and the Director) and 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 his leave application, the applicant failed to put forward any grounds showing any error of law or procedural unfairness or irrationality in the Board’s decision. He has not demonstrated that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in rejecting his application.

18.  For the above reasons, there is no prospect of success, let alone real prospect of success, in the applicant’s intended appeal. We decline to exercise our discretion to grant leave to appeal against the decision of 4 November 2021 out of time and dismiss the application for extension of time to appeal filed on 14 April 2022.