RE CERVANTES RONEL VILLACERAN

CAMP 456/2021

[2022] HKCA 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 456 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1072 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 13 May 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 30 May 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 25 October 2016 rejecting the applicant’s non-refoulement claim.

2.  On 28 September 2021, the Judge refused to extend the time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a Philippine national. He arrived in Hong Kong on 4 September 2013 and was permitted to remain as a visitor until 7 September 2013. He did not depart, and has overstayed. He was arrested by police in Hong Kong on 21 July 2014 on suspicion of overstaying, and was referred to the Immigration Department on 22 July 2014. He lodged his non-refoulement claim on 23 July 2014.

4.  The applicant’s claim was based on the fear that, if he returned to the Philippines, he would be harmed or even killed by members of a criminal syndicate called “Modus Operandi”, because he had reported to the police that the syndicate was running a scam to defraud people including his in-laws. The factual background of his claim was set out at paragraphs 34 to 56 of the Board’s decision.

5.  By notice of decision dated 25 October 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 15 March 2018, during which the applicant gave oral testimony and answered questions from the Board. The Board noted that it had raised concerns due to the vagueness of and inconsistencies in the applicant’s evidence, as well as his delay in raising his claim. The Board had raised issues regarding the evidence with the applicant at the Board hearing, but the applicant apparently stated that he had no comments on those concerns. The applicant was unable to point to any independent evidence that corroborated the existence of the claimed syndicate. Overall the Board did not accept the applicant was a credible witness, and did not accept the credibility of aspect of his claims. The Board did not accept that an organisation called Modus Operandi existed in the Philippines, or that the applicant faced a risk of harm from such an organization, or that the applicant had remained in Hong Kong in breach of his visa because of his claimed fear of harm if he returned to the Philippines.

7.  As a result the Board found that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 30 May 2018 in respect of all applicable grounds.

The Judge’s decisions in the court below

8.  On 11 June 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation, the applicant simply stated that the Immigration Department disregarded his dangerous situation.

9.  Following a hearing on 26 January 2021 attended by the applicant, on 13 May 2021 the Judge refused to grant leave to apply for judicial review. The reasons were set out at [8] – [11] of the Form CALL-1 as follows:

“ 8. On 11 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely stated that he rejects the decision as it disregarded his dangerous situation in his home country but without providing any particulars or elaboration how it did so, nor did he put forward any other proper ground for his intended challenge, and at the hearing of his application he merely repeated his claim that his life would still be in danger in his home country. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not see any reasonably arguable basis for his intended challenge.

9. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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.

10. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

11. In the premises and having considered 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.  On 27 July 2021, the applicant took out a summons to seek an extension of time to appeal against the Judge’s decision. In his supporting affidavit, the applicant explained that his application was late because he did not receive any letter from the court.

11.  After a hearing on 15 September 2021 attended by the applicant, on 28 September 2021, the Judge refused to grant an extension of time to appeal, as he was not satisfied that the applicant has provided any good reason for his delay and did not see any prospect of success in the intended appeal.

The renewed application before this Court

12.  On 15 October 2021, the applicant took out a summons seeking an extension of time from this Court for him to appeal against the Judge’s refusal to grant leave for judicial review. However, he did not explain his delay or specify any intended grounds of appeal either in his summons or the accompanying affidavit.

13.  The applicant lodged his written submissions on 29 October 2021, in which he briefly summarised the basis for his non-refoulement claim, saying that the syndicate were armed with guns and could kill him. He also summarised the procedural history, but did not specify any grounds of appeal.

Discussion

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 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 intended appeal’s prospect of success; 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 will still examine if the intended appeal has merits, in terms of whether there is a real prospect of success in persuading this Court to reverse the decision of the judge: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

16.  The applicant’s intended appeal was late by 2 months. The delay was substantial, and the applicant has not provided any reasonable explanation for the delay. We have therefore proceeded to see whether there are any real prospects of success in the intended appeal.

17.  In assessing the merit of the intended appeal, we 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]. In particular, the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its adverse finding on the applicant’s credibility. As such, the Board found that there was no real risk of harm in the event of refoulement. Such a finding is within the province of the Board, and the applicant has failed to raise any public law grounds for impugning it. Nor has the applicant, indeed, raised any ground for challenging the Board’s adverse finding on his credibility.

19.  It is odd that the Judge said in his reasons stated in the CALL-1 form that the Director and the Board decided that the risk of harm was a localised one. In fact the Board’s decision was that there was no real risk of harm established, for the reasons explained above. Nevertheless, the fact remains that the applicant has failed to put forward any ground of appeal or otherwise show that the Judge’s refusal of leave to apply for judicial review was in any way erroneous.

20.  Having considered the materials before us, we too are of the view that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

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 of 15 October 2021 is accordingly dismissed.