RE GARILLO RICHARD ORTAL

CAMP 191/2019

[2020] HKCA 48

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 191 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 589 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 30 April 2019 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by Deputy High Court Judge Lung (“DHCJ Lung”) on 1 August 2019.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 March 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 9 August 2016 and 15 August 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of the Philippines.  He first entered Hong Kong to work as a domestic helper in January 2001.  He last arrived into Hong Kong on 15 December 2002, and was given permission to remain until 28 December 2002.  He overstayed and was arrested by an immigration officer on 18 January 2009.  He made a torture claim on 19 January 2009, but withdrew it on 16 August 2010.  Then on 18 December 2010, he requested to reopen his torture claim.  The Director rejected the claim on 15 May 2012.  The applicant did not appeal the decision. 

6.  In April 2016, the applicant raised a non-refoulement claim based on his fear of being harmed or killed by a drug dealer named Noel and his people because he had reported Noel’s illicit activities to the police. The applicant’s claim was detailed in the Director’s first decision at [6], and summarised by the Judge in [3] to [12] of the Form CALL-1[1].  The applicant’s case, in gist, is that in 2002, one week after he had reported Noel to the police, he was assaulted by policemen who warned him not to report someone with background.  After he was discharged from hospital, he left his home village and had made short visits to Hong Kong.  Later when armed strangers in police uniform came to his area of residence to look for him, he began to fear for his personal safety and left for Hong Kong in December 2002.  While he was in Hong Kong, he learned that his cousin was murdered in December 2002.  In 2015, his father was murdered by Noel after he tried to report Noel to the police.  Recently on 8 February 2017, the applicant’s brother was killed by the police.   

7.  By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the BOR 3 risk[2] and persecution risk[3] grounds, and the second decision covers the BOR 2 risk[4] ground.

8.  The applicant’s appeal to the Board was heard on 27 November 2017.  By its decision dated 15 March 2018, the Board dismissed the appeal.  Primarily, the Board did not accept the applicant’s account and did not find the documents he produced support his claim that his father was murdered by Noel.

9.  On 10 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He raised the following grounds in support of the application:

(1) The Board had unlawfully fettered its discretion by refusing the applicant’s appeal for the reason that he failed to satisfy the requirements on all the applicable grounds.

(2) The adjudicator acted in a procedurally unfair manner in handling the applicant’s appeal.

(3) The Board’s decision was unreasonable and irrational in the public law sense or was procedurally unfair.

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

(5) The Board failed to give the applicant sufficient time to read the appeal bundle and to prepare for the appeal hearing, having regard to his language problem and lack of legal representation.

(6) The Board relied on outdated cases, hearsay evidence and information not officially recognized and, consequently, made groundless speculation that it was safe for the applicant to return to his home country.

10.  At the applicant’s request, the Judge listed the application for an oral hearing on 10 September 2018.  By his decision dated 30 April 2019, the Judge dismissed the application.  His reasons were set out in [33] to [44] of the Form CALL-1 as follows:

“33. The Applicant said he was not legally represented at some stage. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 9 August 2016

34. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process.

35. In court, the Applicant said he had a lawyer to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

36. The Applicant complained he received the appeal bundle on 21 November 2017, only a few days before the appeal hearing scheduled for 27 November 2017.

37. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

38. The Applicant received the appeal bundle 6 calendar days (or 5 working days) prior to the appeal hearing. The rules had not been breached.

39. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous.

40. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. There is no evidence he had so complained to the Adjudicator or asked for adjournment during the appeal hearing.

41. The Applicant said he answered all the questions in the Board hearing honestly. That means he knew what was asked and how to answer. He was not confused.

42. There was no evidence the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.

43. The Director said the Applicant left Hong Kong on 28 January 2002. The Adjudicator mistook it to be 28 February 2002. Apparently, that caused the Adjudicator to think the Applicant reported to the Filipino police about Noel in ‘March’ 2002, when it should be ‘February’ 2002. However, that was a minor mistake. It bore no significance to the Adjudicator’s decision.

44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court,expired on 14 May 2019.  On 15 May 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  DHCJ Lung heard the application on 10 July 2019, and by his decision handed down on 1 August 2019 dismissed the application.  On 9 August 2019, the applicant filed the present summons and an affirmation in this Court to renew his application for leave to appeal out of time.

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

13.  The applicant was late by one day, which is a short delay.  In the summons, the applicant explained that he did not know the law and there was no one to help him.  Given that it was a short delay, we are prepared to accept the explanation.  In any event, what is more important is the prospect of the applicant’s intended appeal.  

14.  The applicant did not provide any draft grounds of appeal for his intended appeal.  He only requested, in the supporting affirmation, for a review of the Judge’s decision and complained that his dangerous situation has been disregarded.

15.  In his written submission, the applicant complained that the Board was insensitive to the situation in the Philippines and his situation, and erred in believing there was rule of law in the Philippines and the law would protect him. Specifically, he put forward the following arguments:

(1) He disagreed with the Judge’s comment in [23] of the Form CALL-1 that he had delayed in making a non-refoulement claim for several years.  He explained that as a foreigner, he did not know he could make the claim and he had no knowledge of the procedure and mechanism.

(2) Relying on some human rights reports on the Philippines, he stated that his home country is fraught with unlawful and extra judicial killings by police and armed forces.  Hence, it would not be safe for him to return to the Philippines.

(3) With regard to the Judge’s reason in [32] of the Form CALL-1, namely, the primary decision-makers are the Director and the Board and the Court would not intervene unless there are public law grounds, he complained that the Judge erred in being insensitive to the situation in his home country.

16.  None of the grounds argued in the written submission were raised in the application for leave to appeal out of time before DHCJ Lung.  In the absence of any justification, it is not open to the applicant to raise them now.  Further, for the reasons set out below, the contentions and arguments in the applicant’s affirmation and written submission do not amount to viable grounds of appeal.

17.  First, it is indisputable that the applicant did not make any non-refoulement claim since he last entered Hong Kong in 2002 and it was only after he was arrested in 2009 that he made a torture claim.  The Judge was entitled to make reference to this in his reasons.  Second, [32] of the Form CALL-1 quoted from this Court’s judgment in Re Islam Rafiqul [2018] HKCA 570 at [14(1)], which sets out the well-established principle that the Director and the Board are the primary decision makers, and the Court in a judicial review will not usurp the Board’s role, and will only intervene if there are errors of law or procedural unfairness or irrationality in the Board’s decision.  The Judge did not err in referring to these principles.  Third, given the Board’s doubts over the veracity of the applicant’s case and that it had rejected his account about Noel, the reference to reports on the situation in the Philippines serves no useful purpose.  

18.  We are of the view that the intended appeal has no prospect of success.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 9 August 2019.

19.  As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.