FONTANILLA DOMINADOR JR ABAYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 45 /2024, [2024] HKCA 1118

On appeal from [2023] HKCFI 3036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 45 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1536 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 22 November 2023, Deputy High Court Judge To refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement claim^[1].

2.  On 8 January 2024, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision.  The summons was dismissed by the judge on 5 March 2024^[2].

3.  On 11 March 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of the Philippines. He entered Hong Kong on 7 November 2015 as a visitor and subsequently overstayed.  He was arrested on 22 January 2017 and raised a non-refoulement claim on 24 January 2017.  His claim was made on the basis that he will be harmed or killed by Aspiras (his former employer) and his men if he is refouled to the Philippines because he had refused to continue to work for Aspiras.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 31 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 Board.  The appeal was heard before the Board on 20 November 2018.  The Board considered that the core of the applicant’s case is speculative, unrealistic and lacks credibility.  The Board was not persuaded that the applicant was ever threatened with death by Aspiras or that the two incidents which allegedly happened in 2008 and 2015 actually took place.  It was found that the applicant failed to establish there is real risk he would suffer ill-treatment of any sort if he is refouled to the Philippines. Therefore, the Board dismissed the appeal on 20 May 2019.

The intended judicial review

7.  On 4 June 2019, the applicant filed a Form 86 and an affirmation in HCAL 1536/2019 to seek leave to bring judicial review against the Board’s decision.  In his supporting affirmation, he stated that the Board disregarded his dangerous situation.

The judge’s decision

8.  DHCJ To considered the leave application on paper as the applicant did not request for an oral hearing.  The judge held there is no error of law or procedural unfairness in the Board’s decision and that the decision is utterly without fault.  Therefore, the judge decided that the proposed judicial review has no realistic prospect of success and dismissed the leave application on 22 November 2023.

Grounds of intended appeal

9.  The applicant stated his grounds of appeal in his written submissions which may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  The adjudicator acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

10.  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.

11.  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 order was made on 22 November 2023 and the applicant was late by more than one month when he took out the summons at the court below on 8 January 2024. He explained that the mails were collected by his landlord and he only got the judgment from the landlord on 7 January 2024^[7].

12.  The judge did not accept the applicant’s explanation as the applicant did not provide credible evidence to show that the landlord had kept his letters for one and a half months, especially when it was noted that the applicant was able to file his affirmation in response to the court’s direction dated 23 January 2024 within 14 days.

13.  In the renewed application before this court, the applicant has still not provided any further explanation or evidence in this respect.  In these circumstances, his explanation cannot justify the delay.  As the delay is inexcusable, 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.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  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 scrutinising 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 Country of Origin Information 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.

16.  The applicant’s grounds in this application are just groundless assertions.  In particular, the Board has provided detailed analysis on the applicant’s credibility in §§54 to 57 of the decision.  The applicant failed to provide any evidence to refute the Board’s findings or identify any particular procedural unfairness.  In addition, he also failed to put forward any reasonably arguable grounds against the judge’s decision.  It has not been shown 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.

17.  For the above reasons, there is no prospect of success in the intended appeal.  We refuse to allow the applicant to appeal against the decision of 22 November 2023 out of time and dismiss the summons filed on 11 March 2024.