RE DUMAGSA MARCELO CALDERON

CAMP 126/2020

[2021] HKCA 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 126 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1084 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  On 4 December 2019, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 May 2018 (“the Decision”).  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 3 June 2015 and 20 September 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 20 December 2019 seeking an extension of time to appeal against the Decision.  On 28 July 2020, the Judge refused to grant him leave to appeal out of time against the Decision (“the Leave Decision”).

3.  By a summons dated 11 August 2020, the applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 5 November 2020, the applicant lodged his written submission on 20 November 2020. 

4.  Having considered the summons, the supporting affidavit and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The Applicant is a national of the Philippines who arrived in Hong Kong on 10 April 2012 with permission to work as a foreign domestic helper until his employment contract expired on 10 April 2014 or within two weeks of its early termination.  However, when his contract was prematurely terminated on 26 May 2012 he did not depart and instead overstayed until he was arrested by police on 11 December 2012.  He was then referred to the Immigration Department for investigation.  On 11 March 2014, he raised a non-refoulement claim on the basis that if he were to return to the Philippines he would be harmed or killed by (a) Jose Raul (“Jose”) who was a member of a rebel group named Sagupa Group and his people because they requested to occupy a land of rice field which belongs to the applicant’s father (“the family land”) and (b) his creditor Reynaldo Noya (“Reynaldo”) because the applicant failed to repay his loan.

6.  By the Notice of Decision and Notice of Further Decision dated 3 June 2015 and 20 September 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

7.  The applicant appealed to the Board. After the hearing on 11 November 2016, the Board dismissed the appeal on 29 May 2018. For the reasons and analysis stated in [50] to [74] of the Board’s decision, the Board found that the applicant’s case was based on mere assertions and the alleged threats to the applicant arose from private and personal disputes and that both state/police protection and reasonable internal relocation within the Philippines would be available to him to move safely to other areas away from his home district and from any risk of harm from his perceived enemies. For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

The Judge’s decision

8.  On 13 June 2018, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  procedural unfairness in that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

(4)  procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  procedural unfairness in providing him with the hearing bundle only six days before the appeal hearing with the majority of the documents in English without translation thereby giving him insufficient time to prepare his appeal before the Board due to his limited skills in English and without the means to find an interpreter to assist him in his preparation; and

(6)  the Board had significantly relied on news from sources not officially recognized or are hearsay or outdated which resulted in groundless speculations by the Board that it would be safe for him to return to his country of origin.

9.  The Judge heard the case on 10 July 2019.  On 4 December 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [15] – [20] for his refusal to grant leave:

“15. These are however mainly 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 applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator unlawfully fetter its discretion or act in procedurally unfair manner, or which COI were unofficially recognized or were hearsay or outdated that led to groundless speculations by the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of which I do not find any basis or merits in them or that any of them reasonably arguable for his intended challenge.

16. As has been repeatedly emphasized by the Court of Appeal, 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.

17. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

18. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interview and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he was assisted by an interpreter during which he never raised any issue with the hearing bundle or requested the adjudicator for further time to enable him to better prepare for his appeal. As such I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

19. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision 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.

20.  In the premises and having proceeded to consider 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.”

10.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 18 December 2019).  By the summons filed on 20 December 2019, he sought an extension of time for him to appeal against the Decision.  In his supporting affidavit, he explained that he only received the Decision on 14 December 2019.  The summons was heard before the Judge on 2 June 2020 and by the Leave Decision, the summons was dismissed.  On the issue of delay, the court record showed that the Decision was sent on the day it was handed down to his last reported address, and it was not returned through the undelivered mail.  As such, the Judge was not satisfied that the applicant had provided any good reason for his delay, but since the delay was minor, the Judge focused on the merit of his intended appeal. 

11.  Regarding the intended appeal, the applicant did not either in his summons or affidavit provide any draft or proposed grounds of appeal, or any particulars of any error on the Decision, or why it might be argued that the Decision was unfair or unreasonable.  As such, the Judge found no prospect of success in the applicant’s intended appeal and therefore refused his application for an extension of time to appeal, and dismissed his summons.

The Renew Application

12.  By the summons dated 11 August 2020, the applicant renewed the matter before us.  He did not provide any draft or proposed grounds of appeal save for saying that he wanted to challenge the Leave Decision.  In his written submissions, he merely reiterated the background of his case and expressed his wish to stay in Hong Kong.

13.  Whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal out of time against the Decision rather than the Leave Decision made by the Judge.

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless an extension of time to appeal is granted.  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 the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

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

Discussion

17.  We agree with the Judge that the 2-day delay is insignificant despite the applicant’s failure to provide any good reason for the delay.  We would focus on the more important issue on the merit of the intended appeal.

18.  Here, the applicant failed to provide any grounds of his intended appeal nor pinpoint any error of law or procedural unfairness or irregularities for us to reverse the Decision and his application is bound to fail.

19.  We have carefully reviewed the Board’s decision and it was open to the Board to find that the applicant’s alleged risk of harm was a localized and private one and it was not unreasonable or unsafe for him to relocate to other parts of the Philippines and there was no justification to afford the applicant with non-refoulement protection in Hong Kong.  We found that the Board’s decision was eminently reasonable and justified.

20.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and we endorse the Judge’s findings that there is no prospect of success in the applicant’s intended application for judicial review.

21.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 11 August 2020 is dismissed accordingly.

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3]      This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.