CELESTIAL VALENTIN GUISINGA v. TORTURE CLAIMS APPEAL BOARD

CAMP 367/2022

[2022] HKCA 1825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 367 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 386 OF 2019)

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J U D G M E N T

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

1.  On 22 September 2022, the Applicant took out a summons to apply for an extension time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 22 April 2022 refusing to grant him leave to apply for judicial review (“the Order”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 July 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of the Philippines. He arrived in Hong Kong on 13 January 2016 as a visitor with permission to remain up to 27 January 2016. He did not depart after the expiry of his limit of stay, and overstayed instead. On 16 February 2016, he surrendered to the Immigration Department and raised a non-refoulement claim alleging that, if he returned to the Philippines, he would be harmed or killed by people who held grudges against him over past disputes in his home district. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 1165).

5.  By a Notice of Decision dated 9 July 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 11 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those people trying to take revenge against him for leaving his home country for Hong Kong, and that in any event they were private personal disputes without any official involvement that state/police protection would be available to him upon his return to the Philippines as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

7.  On 11 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In his supporting affidavit of the same date, he put forward the following grounds for his intended challenge (as summarized by the Judge at §9 of the CALL-1 Form):

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the ground that his situation did not satisfy the requirements for non-refoulement protection;

(2)  The Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  The Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  The Board had significantly relied on source of news that was not officially recognized or was simply hearsay or outdated. The lack of credible source of information had resulted in the Board making groundless speculations that it was safe for the Applicant to return to his home country; and

(6)  The Applicant was not given an opportunity to put forward his submissions at the oral hearing or submit written submissions or evidence or reply to the submissions of the Director.

THE JUDGE’S DECISION

8.  On 22 April 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[10] [The grounds] are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fettered its discretion or that the Adjudicator acted in a procedurally unfair manner or that the decision was unreasonable or irrational in the public law sense, or which COI relied on by the Board were not officially recognized or were hearsay or outdated, or how was he not given any opportunity to present his submissions when it was clearly recorded in the decision ([21] – [31]) that he was able to make proper presentation of his case during his appeal hearing before the Board and to answer questions raised of his claim without any problem or difficulty. As such and for the reasons given, I do not find any of these grounds of the Applicant reasonably arguable for his intended challenge.

[11] 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.

[12] In the Applicant’s case, 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 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.”

9.  On 23 August 2022, the Judge refused the Applicant’s application by summons dated 16 May 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2563).

THIS APPLICATION

10.  By a summons taken out on 22 September 2022, the Applicant applied to the Court of Appeal for an extension time to appeal against the Order. In his supporting affirmation filed on the same date, the Applicant stated he would like to appeal because he would face hardship, and his life would be in danger, in his home country.

11.  In his written submissions dated 6 October 2022, he set out some general principles of law relating to non-refoulement claims, but failed to explain how those principles were applicable or relevant to his case.

DISCUSSION

12.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

16.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 22 April 2022, and has failed to raise any viable ground of appeal against the Order.

17.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons of 22 September 2022 is dismissed.