RE RESPICIO JAYSON OLAEZ

CACV 43/2022, [2024] HKCA 136

On Appeal From [2022] HKCFI 45

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 43 OF 2022

(ON APPEAL FROM HCAL NO 1552 OF 2018)

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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.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 7 January 2022, by which the Deputy Judge refused to grant extension of time to the applicant and dismissed his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 45).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 27 February 2017 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 25 August 2015 (“the Director’s First Decision”) and 1 November 2017 (“the Director’s Further Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 20 January 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of the Philippines.  He last entered Hong Kong as a visitor on 4 November 2009 but overstayed.  On 5 March 2011, he raised a torture claim which was later taken by the Director as a non-refoulement claim on the basis that if refouled, he would be harmed or killed by four unknown people because he accidently injured two of them in an accident.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By his decisions, the Director dismissed his non‑refoulement claim on all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  The applicant then appealed against the Director’s First Decision to the Board.  The Board heard the matter on 15 August 2016 and the applicant, acting in person, elected not to answer questions.

6.  By the Board’s Decision, the Board dismissed the applicant’s appeal.  In essence, the Board found the applicant’s story vague and unreliable.  The Board further noted that as the applicant chose not to give evidence, the Board was unable to make findings on credibility and dismissed his appeal.  For completeness, the Board further considered that even if his claim was to be considered based on the applicant’s alleged set of facts, the dispute was private in nature and there was no state involvement. The Board also noted that there was no evidence to show that the applicant had suffered any physical or mental pain to the minimum level of severity.  The Board also noted that internal relocation was available and the dispute happened over seven years ago.  Having considered the evidence, the Board considered that the applicant’s claim failed on all applicable grounds including torture risk, BOR3 risk and persecution risk and dismissed his appeal.

The Leave Decision

7.  On 6 August 2018, the applicant filed his Form 86 and supporting affidavit, applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was given by the applicant in his Form 86.  In his supporting affidavit, he merely asserted that the Board disregarded his dangerous situation and that he could not seek assistance as he did not understand the Hong Kong legal system.  As the applicant did not request for any oral hearing, his application was considered on paper.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [14] ‑ [21] of the Leave Decision:

“14.  As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

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

‘31 (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.’

17.  In the hearing before the Board, the consequences of not answering questions from the Board or not giving evidence is quite apparent to the applicant.  The burden is on the applicant to convince the Board that he had a genuine case for non‑refoulement.  His attendance is purely on the question of the facts he had alleged before the immigration officer.  The issue was the strength of the evidence that supported the applicant’s case.  The Board did not brush aside his evidence since he did not give evidence.  The Board had analyzed the evidence before him and found that the evidence did not support the applicant’s claim.

18.  The applicant does not have any valid ground to challenge the Board’s Decision.

19.  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.

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

CONCLUSION

21.  I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The Appeal

9.  On 20 January 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he stated that:

“I would like to reject and review the decision made by Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation.” (sic)

10.  Pursuant to the directions of the Registrar of Civil Appeals dated 20 January 2022, the applicant lodged his written submissions on 4 February 2022.  In those submissions, he alleged that he would be in grave danger in the Philippines as he would not be protected from violence and other human rights abuses in his home and country.  He also referred to the human rights report of Philippines 2017/2018 produced by Amnesty International and the report by the Human Rights Watch that the Philippines was fraught with unlawful killings by police and armed individuals.  He asserted that internal relocation would be impossible as the Philippines is a communal society and people could be tracked down easily.

Discussion

11.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

13.  In our view, the applicant’s allegations have no substance.  It is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision.  His complaints are also all general and vague without specific particulars or evidence in support.  They therefore do not constitute proper grounds of appeal.  See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, he did not identify any specific error in the Leave Decision.  This appeal must fail on this alone.

14.  Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  There is none in the present case.

15.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.