RE ESTALILLA FEDERICO SUPSUP

CACV 50/2021

[2021] HKCA 957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 50 OF 2021

(ON APPEAL FROM HCAL NO. 454 of 2019)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”)  given on 26 January 2021 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”)  dated 8 February 2019 refusing to accept the applicant’s late filing of a notice of appeal to appeal against the decision of the Director of Immigration (“the Director”)  dated 11 April 2017, which rejected his non-refoulement claim on the BOR 2 risk ground[1].    

2.  The applicant has consented to his appeal being determined on the papers without an oral hearing.

3.  The applicant is a national of the Philippines aged 66.  He came to Hong Kong in 1992 to work as a domestic helper.  After his employment contract expired in 2006, he did not depart and overstayed.  On 20 August 2013, he was arrested by the police for taking up employment unlawfully.  He was later convicted and sentenced to eight months’ imprisonment.  On 16 December 2013, he lodged a non-refoulement claim. 

4.  The applicant’s claim is based on his fear of being harmed or killed by the family of a girl who died in a traffic accident involving a motor cycle registered in his name and driven by his friend and he was a pillion passenger.  The girl’s family members are associated with the New People’s Army.  The applicant’s case was set out in detail in the Director’s decision. We will not repeat it.

5.  By a Notice of Decision dated 27 May 2015, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], the BOR 3 risk[3], and the persecution risk[4] grounds.  The applicant appealed the decision to the Board.  The Board heard the appeal at an oral hearing held on 10 June 2016, during which the applicant elected to remain silent and not to answer questions from the Board.  By its decision dated 1 February 2017, the Board dismissed the appeal.  Primarily, the Board considered the applicant’s case vague, unreliable and not credible.  The Board had gone on to consider the torture risk, persecution risk and BOR 3 risk grounds and concluded that, even on the applicant’s own version of facts, none of these grounds was made out. 

6.  By a further decision dated 11 April 2017, the Director further assessed the applicant’s claim under the BOR 2 risk ground and concluded that the ground was not established. 

7.  Under section 37ZS(1)  of the Immigration Ordinance, Cap. 115, the applicant has 14 days from the issue of the notice of the Director’s further decision to appeal the decision to the Board.  Section 37ZT(3)  further provided that the Board may allow the late filing of the notice of appeal if it is satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal.      

8.  On 15 May 2017, the applicant filed a notice of appeal out of time to appeal the Director’s further decision to the Board.  The applicant explained in the notice of appeal that he got the letter late.  By its decision dated 8 February 2019, the Board refused to accept the late filing of the notice of appeal.  In the first place, the Board found the explanation given by the applicant to be unsatisfactory, having regard to the fact that the Director’s further decision was posted to the address provided by the applicant on the date the decision was issued.  The Board considered  there were no special circumstances making it unfair or unjust not to allow the late filing justification. Secondly, the Board was of the view that the applicant’s intended appeal had no prospect of success having regard to the fact that he had not provided any material which was new or legally different from his previous case.  It also rejected the applicant’s bare criticism of the Director’s decision and mere assertion that “the Philippines is the most violent country at this time”.

9.  The applicant filed his Form 86 together with a supporting affirmation on 18 February 2019 to seek leave to apply for judicial review against the Board’s decision of 8 February 2019.  Other than stating that he was not satisfied with the Board’s decision, the applicant did not set out any ground for seeking relief in either of the two documents.    

10.  By his decision of 26 January 2021, the Judge refused to give leave to apply for judicial review.  The Judge held that the intended judicial review had no prospect of success.  The relevant part of his reasons appeared at [23] to [26] of the Form CALL-1 dated 26 January 2021 ([2021] HKCFI 168)  as follows:

“23. In its second decision, the Board indeed considered the merit of the applicant’s appeal and found there was no merit in his claim, para 15.

24. As mentioned, the Board had made adverse findings on the credibility of the applicant and refused to accept the alleged primary facts in support of his claim. There is therefore no basis in support of his claimed fear. The applicant did not challenge the first decision of the Board. In any event, the Board’s first decision is eminently reasonable. Without providing additional materials or facts to the Director for the consideration of the BOR 2 risk, the claim for such risk must fail. There cannot be criticism in the Board’s second decision dismissing the applicant’s appeal against the Director’s second decision.

25. When it has been established that it is not unreasonable or unsafe for the applicant to relocate to another part of his home country, there will be no justification for affording him non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.

26.    Having considered the two decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I find any failure on their part to apply high standards of fairness.  There is entirely no merit in the applicant’s application for non-refoulement protection.”

11.  The applicant filed a Notice of Appeal on 8 February 2021 to appeal the Judge’s decision.  He did not set out any ground of appeal, other than stating that he wanted to appeal because the decision was unreasonable. 

12.  The applicant has lodged a written submission in which he made the following points:

(1)  He would be in grave danger if he were to return to the Philippines.  The Board was misguided when it thought that rule of law would be practised in the Philippines.

(2)  The Judge commented on his delay.  As a foreigner and non-refoulement claimant, he did not know how and what to do and had no legal knowledge.  It was when he was detained that he came to be informed about what he could do. 

(3)  Human rights reports show that the Philippines is being run by a dictatorial president who fails to account to the people as evidenced by the many extra-judicial killings.  How could he trust that he would be safe on his return to the country? 

(4)  The human rights reports show that the government and those in power could carry out brutal measures as they wish and will still be safe because they are protected by the government.

(5)  It is a myth to suggest that he could relocate when he would be living like a fugitive on the run.

(6)  His case was originally based on political problems.  Although he is not an important government official or famous dissident, his life should be valued and protected like those victims belonging to political, religious, ethnic or a particular social group who could not be protected by their home government.   

13.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].         

14.  Of the points raised by the applicant in his written submission, only two points concern the Judge and his decision (see [12(2)] and [12(5)] above).  The first point relates to [20] of the Form CALL-1 where the Judge agreed with the Board that the applicant’s conduct of not making his non-refoulement claim until after a long period of time damaged his credibility and was inconsistent with someone in genuine fear for life and safety.  This comment is made in the context of discussing the Board’s first decision dismissing the appeal against the Director’s first decision.  The Judge made this comment after stating that assessment of evidence and risk of harm is within the province of the Board, and he then went on to hold that there was no reasonably arguable basis to challenge the Board’s decision (see [19] and [21] of the Form CALL-1).  As to the second point, it concerns [23] of the Form CALL-1 where the Judge referred to the Director’s finding that internal relocation options were available.   

15.  As the Judge rightly pointed out, assessment of credibility, risk of harm and country of origin information is a matter for the Director and the Board, who are the primary decision makers.  The Court will not interfere with their decisions unless there are errors of law, irrationality or procedural unfairness. 

16.  In its first decision of 1 February 2017, the Board made adverse finding on the credibility of the applicant’s evidence and case.  One of the matters that the Board took into account was the fact that the applicant did not raise any non-refoulement claim until he was arrested, despite having been in Hong Kong for nine years by then.  This is plainly a relevant factor and the Board did not err in taking it into consideration.  The Judge’s comment at [20], read together with [19] and [21], of the Form CALL-1 cannot be faulted. 

17.  Further, the applicant did not appeal against the Board’s first decision.  This being the case, in assessing the merit of the applicant’s intended appeal against the Director’s further decision covering the BOR 2 risk ground, the Board was entitled to consider the findings in its first decision and the fact that the applicant did not provide any additional material despite the Director’s invitation to do so.  It is to be noted that in its first decision, the Board only took note of the Director’s finding on internal relocation, and did not make any finding on this point (see [24] of the Board’s decision dated 1 February 2017).  In the circumstances, the Judge’s comment at [23] of the Form CALL-1 about the availability of internal relocation options is unnecessary.  The applicant’s submission on this point is not relevant since the Board had not taken into account internal relocation options.

18.  As to the rest of the points raised in the applicant’s written submission, they are directed at the assessment of the applicant’s claim and risk of harm by the Director and the Board.  They do not constitute viable grounds for disturbing the Board’s finding that the intended appeal against the Director’s further decision has no prospect of success conclusion and there are no special circumstances justifying allowing the applicant to appeal out of time.  We agree with the Judge’s conclusion that there is no proper basis to interfere with the Board’s decision and the intended judicial review has no reasonable prospect of success.

19.  For the above reasons, the appeal is unarguable. Accordingly, we dismiss the appeal.