RE PANERGALIN CELSO ARTIPICIO

CACV 168/2019

[2019] HKCA 1293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 168 OF 2019

(ON APPEAL FROM HCAL 397 OF 2018)

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J U D G M E N T

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Hon Wong J (giving the Judgment of the Court):

1.  This Court (Chu JA and Wong J) gave Judgment on 21 October 2019 dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 March 2019 refusing his application for leave to apply for judicial review concerning his non‑refoulement claim.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our Judgment and will not be repeated here.

2.  The applicant subsequently applied, by a Notice of Motion dated 28 October 2019, for leave to appeal to the Court of Final Appeal.  On 30 October 2019, the Registrar of Civil Appeals directed the applicant to lodge written submissions by 11 November 2019.

3.  The Registrar had further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

4.  The applicant stated in his Notice of Motion that:

“1. the High Court’s judgment has underestimated his possibility of harm should he return; and

2.   he was shocked that the Court doubted his credibility.”

5.  The main points which the applicant stated in his submission which the court received on 11 November 2019 may be summarised as follows:

(a)    The Judge erred in not disturbing the finding of the Board that his claim of having witnessed the murder he alleged as inherently incredible[1];

(b)   The finding of relocation was contrary to the rights guaranteed under the Universal Declaration of Human Rights (“UDHR”), he quoted the preamble of the UDHR: “recognition of the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace of the world” and submitted that relocation would deprive him the way to live like a normal human being;

(c)    There was insufficient assessment of Country of Origin Information (“COI”), including some reports which state that the Philippines is fraught with unlawful killing by police and armed individuals, and the fact of withdrawal of the Philippines from the International Criminal Court;

(d)   The TCAB failed to consider and assess his case thoroughly, overlooking in particular the matters just mentioned; and

(e)    This court failed to look into whether there was any legal error or procedural unfairness on the part of the Judge.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance[2] provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

7.  No question of great general or public importance has been identified in the grounds in the Notice of Motion and the subsequent written submission.

8.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).  The role of the Court of Appeal in an appeal of this nature was clearly set out in our judgment.[3]  The matters raised by the applicant can be briefly dealt with as follows:

(a)    The applicant was not able to demonstrate that there was an underestimation of his risk should he return to his country of origin so that the decision should be reversed.

(b)   As regards assessment of the applicant’s credibility, the Judge had indicated that he had rigorously examined the issue and we could not discern any error in his consideration and decision.

(c)    Relocation was not even a matter raised by the applicant in his application for leave to apply for judicial review.  In any case, relocation was a matter which the Judge did consider.  There is not any negative observation from the Judge to the finding of the Director of Immigration, which the Torture Claims Appeal Board agreed, that relocation of the applicant is possible.

(d)   The Judge had considered the issues in relation to COI and formed the view that there was no merit in the criticism in relation to the assessment of COI.

(e)    The overall observation of the Judge was that the applicant’s case is not reasonably arguable and there is no realistic prospect of success in an application for judicial review.  We agree to this observation.

(f)   We do not find there were any legal error or procedural unfairness on the part of the Judge.  We believe we have considered and dealt with all the points raised by the applicant at the appeal fairly and adequately.

9.  In the circumstances, we cannot find any basis for granting leave to appeal to the Court of Final Appeal.

10.  By virtue of the above, the Notice of Motion dated 28 October 2019 is dismissed.