RE BALLES JEFFREY GALINDO

CAMP 285/2022, [2024] HKCA 599

On Appeal From [2022] HKCFI 1118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 285 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 919 OF 2019)

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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):

1.  By a summons filed on 2 August 2022, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 21 July 2022.  By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 1936)  (“the EOT Decision”)  against his earlier order dated 25 April 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 1118)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 8 March 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 7 March 2018, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of the Philippines.  He worked as a foreign domestic helper in Hong Kong since 2000.  After his final employment contract ended in 2015, he left Hong Kong.  On 27 December 2015, he entered Hong Kong as a visitor and was permitted to stay until 10 January 2016.  He overstayed and was arrested by the police on 18 December 2016.  On 20 December 2016, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by Dionisio Geronella (“DG”), an influential legislative councillor in the Philippines, as he witnessed the murder of a man by DG and four sub-ordinates of DG in June 1999 while he was working on DG’s farm.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] and [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. 

6.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  On 20 September 2018, he attended an oral hearing before the Board and gave evidence.  During the hearing before the Board, he asserted his fear that if he was to return to the Philippines, DG’s son, a police officer in the Philippines, would kill him and blame it on the campaign run by the former president of the Philippines Rodrigo Duterte against drug addicts.

7.  By the Board’s Decision, the Board dismissed his appeal.  The Board found that there were inconsistencies and deficiencies in the applicant’s account of events in respect of the murder he witnessed.  The Board did not accept that he witnessed a murder or would be killed by the police in the former president’s campaign against drug addicts in the Philippines.  The Board also found that there was no evidence to suggest that the applicant would face a real chance of harm of any kind in the Philippines. In any event, the Board was of the view that internal relocation would be available to the applicant.  Accordingly, the Board considered that the applicant’s claim failed on all applicable grounds and dismissed his appeal.

The Leave Decision

8.  On 3 April 2019, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review in the Form 86 but only stated that he “did not want to go home”.  In his supporting affidavit, he merely exhibited a copy of the Board’s Decision.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

9.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [13] - [19] of the Leave Decision:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1).… …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.’

16. The applicant has not raised any valid ground to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 15 June 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over one month late with his intended appeal.  In his summons and supporting affirmation, he stated that he did not receive the court’s order within the 14-day period.  He exhibited a copy of the Leave Decision together the sealed order made by the Deputy Judge on 25 April 2022 to his supporting affirmation.

12.  By the EOT Decision, the Deputy Judge noted that the applicant had not been able to identify in what respect the Board had erred in its decision.  As the applicant was unable to show that he had any reasonable prospect of success in his intended appeal against the Leave Decision, the Deputy Judge refused to extend time for his appeal and dismissed his application.

The Present Application

13.  By a summons and supporting affirmation both filed on 2 August 2022, the applicant applied for leave to appeal against the EOT Decision.  In the summons, he asserted that he did not receive the sealed order, Form CALL-1 and the judgment within 14 days as they were lost in post and he could only get them after searching the court file.

14.  In the supporting affirmation, the applicant contended:

“Due to the document being lost in Post, I received the sealed order, CALL-1 and Judgement within 14 days from 27 July 2022 and by that time, I had already missed the deadline to appeal within 14 days from the date of the judgement but there is nothing that I could do to prevent the document being lost in post. I could only get those documents after searching court file.” [sic]

15.  Pursuant to the directions made by the Registrar of Civil Appeals on 2 August 2022, the applicant lodged his written submissions on 15 August 2022.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

Discussion

16.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

17.  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 success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  We consider that the applicant’s delay of over one month is significant.  Records from the court file show that the Leave Decision was sent to the applicant on the same day of the Leave Decision at the same address as that provided by the applicant in the Form 86 without being returned through the undelivered post.  It was his duty to give the Court an address which correspondence or notice can come to his attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on his shoulders: Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].

19.  In the circumstances, as the applicant failed to give any cogent explanation for his delay in bringing the intended appeal, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

20.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  In our view, this application has no merit at all and must fail.  At the outset, the arguments raised in his written submissions are all new grounds not raised before the Deputy Judge.  It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  He failed to identify with specific particulars any error in the Leave Decision.  As already mentioned, the matters raised in his written submissions are general and bare assertions without any specific particulars, elaboration or evidence in support and he did not state how the legal propositions cited are relevant to his case.  Accordingly, they are not proper grounds of appeal.  On this basis alone, his intended appeal must fail.

22.  In any event, we have reviewed both the Board’s Decision and the Leave Decision and the reasons the Board and the Deputy Judge gave for their decisions.  We agree with the Deputy Judge that there is no valid ground to challenge the Board’s Decision by way of judicial review.

23.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 2 August 2022 is dismissed.