RE ARCEGA IAN PATRICK PEDROSO

CACV 52/2022

[2022] HKCA 895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 52 OF 2022

(ON APPEAL FROM HCAL NO. 2326 of 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”)  on 8 June 2021 [1] refusing to extend time and refusing 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 (“Board”)  dated 12 January 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 22 June 2017 rejecting the applicant’s non-refoulement claim. 

Background

2.  The applicant is a Philippine national.  He last arrived in Hong Kong on 21 October 2015 and was permitted to remain as a visitor until 4 November 2015.  On 19 November 2015 he surrendered himself to the Immigration Department.  He lodged his non-refoulement claim on 20 June 2016. 

3.  The applicant’s claim was based on the fear that, if he returned to the Philippines, he would be harmed or even killed by his girlfriend’s ex-boyfriend, or by another man named Jay Plaba Charot, both of whom made threats against him.  The factual background was set out at paragraphs 7.1 to 7.15 of the Director’s decision.

4.  By notice of decision dated 22 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk [2], persecution risk [3], torture risk [4], and BOR 2 risk [5].

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was scheduled for 5 December 2017, however the applicant did not attend.  On the morning of the Board hearing, the applicant telephoned the Board to advise that he was unable to attend due to having insufficient money to pay for public transport.

6.  The Board then wrote to the applicant to acknowledge his absence from the hearing, notify him of the Board’s intention to determine the appeal on the papers without a hearing, and invite him to provide a written explanation together with supporting documents as to why he failed to attend the hearing.  No reply to that letter was received.  The Board did not accept the applicant’s oral explanation for his absence, and proceeded to determine the appeal without a hearing.

7.  Because the Board was unable to ask at the hearing the questions it would have liked to ask, the Board could not make findings as to credibility, or discuss with the applicant the issues of state protection and whether internal relocation would be viable.  Thus, at paragraph 35 of its decision, the Board concluded that it could not make findings as to whether the applicant faces a real risk of harm from his girlfriend’s ex-boyfriend or from Jay Plaba Charot.

8.  Based on the evidence before the Board, it did not consider that the applicant faces a real risk of harm from his girlfriend’s ex-boyfriend or Jay Plaba Charot.  As a result, on 12 January 2018 the Board dismissed the applicant’s appeal on all the applicable grounds. 

Decision of the court below

9.  On 23 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his Form 86 he raised a number grounds for judicial review, which the Judge summarized at paragraph 21 of the Form CALL-1 as follows:

“21. The Applicant advanced the following grounds in support of his application for leave to apply for judicial review:

(1)  the Decision was unreasonable; the Board did not give him sufficient time and chance to arrange relevant evidence as well as his appeal;

(2)  the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case and the Applicant was tortured at the behest of state law enforcement agencies as well as those in high ups of political circle;

(3)  the Director failed to consider arguments and give enough weight to such arguments about weight to be attached to the Country of Origin Information (“COI”); and

(4)  unfair attitude of the Director; and the Director failed to attain the high standard of fairness required by the Wednesbury test.”

10.  Following a hearing on 27 May 2021 at which the applicant appeared before the Judge, on 8 June 2021 the Judge refused to extend time and refused to grant leave to apply for judicial review.  The core reasons for the refusal were set out at [23 to 31] of the Form CALL-1. 

11.  In summary, the Judge considered that there was no merit to Ground (1), because the Board had given the applicant sufficient time and opportunity to “arrange relevant evidence as well as his appeal” [sic], and because it was his choice not to attend the Board hearing or to make submissions to explain his absence.  Ground (2)  could not stand because the applicant was in Hong Kong during the relevant times, thus there could be no torture.  The Judge considered that Ground (3)  was of no substance because the Board had not in fact considered COI.  For Ground (4), the applicant failed to give any particulars of the alleged unfair attitude or breach of the high standard of fairness.

12.  The Judge set out his assessment of the intended judicial review’s prospect of success at [30 to 31] of the Form CALL-1 as follows:

“30. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration⁷.

31.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It gave clear reasons for its finding that the Applicant does not face a real risk of proscribed harm from Yhong or JPC, if refouled. On that basis, it found that the Applicant failed to prove his claim for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision was utterly without fault.” [sic]

Appeal to this Court

13.  On 3 January 2022, the applicant applied for an extension of time to appeal against the Judge’s decision of 8 June 2021.  The Judge granted the extension of time on 10 January 2022.

14.  On 26 January 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal are essentially that the lack of legal and language assistance resulted in procedural unfairness.  He pointed out that neither he nor his friend who assisted him in preparing his leave application and appeal understand legal jargon and that without legal assistance, he could not identify legal errors in the Director or Board’s decisions.  Even when an interpreter was provided at the Board hearing, the hearing bundle was not read to him.  The applicant also pointed out that that his friend is not a professional, and that he could not always find help with interpretation or translation.  Further, the applicant requested that the judgment be translated or read to him, as no translation of the judgment has been provided.

15.  The applicant lodged written submissions on appeal on 16 May 2022.  He submitted that the Director had not made an adverse finding as to his credibility, whereas the Board had done so, and he argued that it was unfair that the court had not intervened.  The rest of his submissions, largely reiterated his grounds of appeal, and elaborated that without sufficient language assistance to enable him to understand his claim to its fullest, he is deprived of the right to lodge a proper appeal and his case is put at risk of being dismissed for lack of grounds.  He further submitted that the authorities have not taken into account the fact that English is not his first language, that he has no right to work in Hong Kong and therefore cannot hire proper help, and that he is traumatized by the problems in his home country.

16.  At the hearing of the appeal, the applicant indicated that he had nothing to add to the written materials.

Legal principles

17.  In assessing the merit of the 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 [6]; Re Md Shohel Sheak [7]; and Re Limbu Birkhaman [8]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  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 to reverse 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.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [9].

Discussion

19.  Upon reading the Board’s Decision, we noticed there are conflicting versions of what had taken place which was not averted to by the Judge.

20.  First of all, under paragraph 7, the Adjudicator said this:

“After having regard to the circumstances of the Appellant and the non-refoulement claim, I decided to hold an oral hearing. At the hearing, the Appellant adopted the information from the Hearing Bundle (the Bundle)  in the NCF, at the interview and in the Appeal as evidence supporting the Appellant’s non-refoulement claim. I asked questions of the Appellant and discussed the Appellant’s non-refoulement claim under all the Applicable Grounds, including BOR 2 Risk. I gave the Appellant the opportunity to make submissions to me.”

21.  Then in the immediate paragraphs following (paragraphs 8 to13)  the Adjudicator described the failure of the Appellant to attend the hearing and his decision to deal with the hearing on papers.

22.  Reading the Board’s Decision as a whole, it is clear that paragraphs 8 to 13 reflect the true position, i.e. the applicant did not attend the meeting, even though the applicant himself also claimed (in his grounds of appeal against the Judge’s decision)  that he had attended the Board hearing. The reference to an oral hearing was obviously an inadvertent mistake. There is no suggestion from the applicant otherwise.

23.  Since the applicant did not attend the Board hearing, the Adjudicator was unable to discuss with or ask the applicant questions arising from the material in the Hearing Bundle. As a result, the Adjudicator said (in paragraph 34), that he was “not able to be satisfied regarding the credibility of the Appellant’s claims”.  

24.  The Adjudicator also said he could not make findings on real risk of harm because the applicant might be able to have state protection or opt for internal relocation (paragraph 35). 

25.  The Adjudicator’s conclusion that on the credible evidence before him, he did not consider the applicant faced a real risk of proscribed harm (paragraphs 36, 39, 41, 43 and 45), read in context, is explicable on the basis that, in the absence of an opportunity to discuss with him issues that arose from the materials, the applicant’s claims were not accepted by the Adjudicator as part of the credible evidence in the first place.

26.  On the information before us, the applicant was given an opportunity to have his say on appeal before the Board, but he chose not to attend.  His excuse of not having enough money to travel to the hearing (when the bus fare was $25)  was rejected by the Adjudicator and the applicant did not challenge that decision or the Adjudicator’s reason for not accepting his excuse.  

27.  The applicant was given an opportunity to explain his absence but he failed to reply to the Board’s post-hearing letter and did not give any valid reason for his absence.  Nor did he explain in the evidence filed for his application for leave for judicial review why he did not reply to the Board’s letter.

28.  As correctly pointed out by the Judge at [25] of Call -1 Form, while the Director and the Board are under a duty to make a joint endeavour with the applicant to ascertain and evaluate facts in support of the applicant’s entitlement to protection, the burden of proving the factual case in support of his claim is nevertheless on him.  The Board and Director cannot undergo the joint endeavour without the cooperation of the applicant.

29.  As the reference to an oral hearing before the Board was obviously a mistake, the failure by the Judge to mention the “conflicting versions” is of no significance in this case.

30.  We note that after the Board dismissed his appeal, the applicant did not apply for Judicial Review in a timely fashion.  The Board’s decision was dated 12 January 2018 yet the applicant made his application on 23 October 2018, more than 6 months later.  As found by the Judge, the delay was inordinate ([34] of Call-1 Form.)

31.  The main complaint by the applicant against the Judge’s decision was on the language issue.  We noted that the applicant had the service of the Duty Lawyer Scheme when he appeared before the Director.  He did not specify how his inability to understand English impacted on his claim when he appeared before the Director.  The applicant can hardly complain about the lack of language assistance during the hearing before the Board when he chose not to attend.  We do not see any unfairness as alleged by the applicant.  

28.  In any event, as this Court (differently constituted)  has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [10]; Re Zahid Abbas [11]; Re Lopchan Subash [12]; Re Gurnishan Singh [13]; Re Gurung Sagar [14]; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [15].

29.  We have reviewed the Judge’s decision and the reasons he gave for rejecting the applicant’s application for leave to apply for extension of time to file the application for leave to apply for judicial review.  We agree with the Judge’s observations that the delay was inordinate and the applicant’s intended judicial review is not reasonably arguable and has no prospect of success. There is no basis to interfere with the Judge’s decision. 

30.  For the above reasons, we are of the view that the appeal has no merit and accordingly we dismiss the appeal.