RE TEJEDOR SERNA JORGE ANDRES

CAMP 332/2022

[2022] HKCA 1718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 332 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 423 OF 2019)

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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 Campbell-Moffat J (“Judge”)  dated 7 April 2022[1] refusing refusing to grant the applicant 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 17 January 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 14 November 2018 rejecting his non-refoulement claim.

2.  On 5 August 2022, the Judge refused to extend time for the applicant to appeal against her decision.[2]

Background

3.  The applicant is a Colombian national born in 1991.  He came to Hong Kong using his passport on 12 April 2017.  Later he departed for Macau and re-entered Hong Kong on 2 July 2017 and was permitted to remain as a visitor until 30 September 2017.  He did not depart and instead, on 3 October 2017, he surrendered to the Immigration Department and requested for non-refoulement protection.  The applicant’s claim was based on the fear that if he returned to Colombia, he would be harmed or killed by a guerilla group called “Clan Usuga” because he had failed to pay them protection money.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  By a notice of decision dated 14 November 2018, the Director rejected the claim. 

5.  The applicant appealed to the Board against both the Director’s decision.  As the Board noted in its decision, the applicant wrote two letters to the Board dated 7 and 22 December 2018 respectively asking that no hearing be arranged and that his case be determined on paper.  Accordingly, the Board proceeded to determine the appeal on the basis of the documents.

6.  The Board noted that the facts stated by the applicant did not show any threat of harm from the Colombian government or made under the colour of state authority.  The applicant spoke of threats, but on his own case had not been assaulted or suffered severe ill-treatment or serious harm.  There was no evidence of harm reaching the requisite level of severity for “torture”, or showing substantial risk of cruel, inhuman or degrading treatment or punishment.  The Board was also satisfied that there were many places in Colombia where the applicant could safely live without undue hardship.

7.  In the result, in its decision dated 17 January 2019, the Board considered that the applicant failed the tests under non-refoulement law by a wide margin, and accordingly dismissed his appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

8.  On 14 February 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form.  In the accompanying affirmation, the applicant said he was in detention at the Castle Peak Bay Immigration Centre and unable to submit important documents in support of his claim, and that the whole decision was unjust and unfair. 

9.  The Judge, having considered the application on the basis of the documents alone, issued her decision on 7 April 2022, refusing to grant leave to apply for judicial review.  The reasons were set out at [13] – [16] of the Form CALL-1 as follows:

“ 13. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator,it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review him/her.

14. There were no grounds of review as such. The applicant maintained that the lack of supporting evidence was because he had been detained at CIC. This is in response to [32(a)] of the Decision but in no way addresses the remainder of the concerns identified by the Adjudicator and does not raise an issue susceptible to judicial review. The applicant seeks a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. An applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007)  10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

15. Since his entry into Hong Kong, the applicant has been the subject of criminal proceedings and has served a term of imprisonment. Whilst not to his credit, this Court has not taken that behaviour into account when deciding whether there are any grounds to grant leave to apply for judicial review. The most obvious issue arising is the fact that he did not attend a hearing before the TCAB and was not therefore granted an opportunity to expand upon his claim. However, the applicant confirmed not once but twice that he did not wish to attend a hearing before the TCAB. He did so at a time when he was detained in CIC and would have had the benefit of advice from the staff of the Immigration Department and also other detainees. He would have known that his case was based upon bare assertions[7] alone and that he had provided no documentary proof of what he said had happened. Despite that fact and the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers carefully. I have looked in particular inter alia, into the suggestion that the applicant was, in some way, prejudiced by his inability to obtain evidence because of his detention. However, I have not found any error of law or procedure on the part of the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The Adjudicator considered all relevant criteria; gave the applicant an opportunity to state his case, which he rejected but nevertheless enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and reasonable.[8]

16. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

10.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons on 17 June 2022 to seek an extension of time to appeal against the decision of the Judge.  In the summons he stated that he did not receive the court’s order within a reasonable period of time.

11.  At the hearing of his application on 5 August 2022, the applicant explained that he had given the court an incorrect address, and only learnt of the court’s decision when he reported to the Immigration Department.  On the same date, the Judge gave her decision, refusing to grant an extension of time to appeal as there was no merit in the underlying application for leave to apply for judicial review.

The renewed application before this Court

12.  By summons filed on 2 September 2022, the applicant made another application for extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the accompanying affirmation, the applicant stated that the grounds of his appeal are that: (i)  the Judge “erred in finding that there was no state protection available despite that fact that the alternative approach to seek justice in Colombia are mere conjecture”; (ii)  the Director failed to give proper weight to the issue of state acquiescence; (iii)  “the Board acted in a procedurally unfair manner in dealing with my application without properly assessing my credibility, and the Director failed to attain the high standard of fairness”.

13.  The applicant has failed to lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 2 September 2022.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

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.  The delay of almost 2 months in this case was substantial.  In these circumstances the court will refuse to extend time unless there are real prospects of success in the intended appeal.

15.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, pursuant to the applicant’s own request, the Board did not hold an oral hearing and proceeded to determine the applicant’s appeal on paper.  The Board eventually came to the conclusion that the applicant faced no real risk of harm of the requisite level should he return to Colombia.  Moreover, the Board was satisfied that internal relocation was a viable option for the applicant upon his return to Colombia.  These are conclusions that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision. It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the ultimate decision.  The applicant has failed to establish any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The grounds of appeal set out by the applicant failed to show how the Judge has erred in refusing to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the underlying application for leave to apply for judicial review. 

17.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.