RE VALDEZ JEYSON BALDO

CAMP 77/2023, [2024] HKCA 957

On appeal from [2022] HKCFI 3204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 621/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”)  dated 25 October 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 22 February 2019 (“the Board’s 2^nd Decision”)  refusing the applicant’s application for late filing of a notice of appeal against the decision of the Director of Immigration (“the Director”)  dated 18 July 2017 rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1] (“the Director’s 2^nd Decision”).

Background

2.  The applicant is a national of the Philippines.  He entered Hong Kong as a visitor on 19 September 2012, but he overstayed and was arrested by the police on 30 April 2013.  Later, he lodged a non-refoulement claim by way of a written representation dated 14 March 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by a loan shark due to his inability to repay a debt. The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of his decision (“the CALL-1 Form”)[2].

4.  By the Director’s decision dated 28 May 2015 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[3], persecution risk[4], and the BOR 3 risk[5].  

5.  The applicant appealed to the Board against the Director’s 1^st Decision.  After a hearing on 25 August 2016, the Board dismissed the applicant’s appeal by its decision dated 7 March 2017 (“the Board’s 1^st Decision”). In dismissing his appeal, the Board found that the applicant’s evidence, on which material aspects of his claim was based, was incredible.

6.  The applicant also appealed to the Board against the Director’s 2^nd Decision, but he had filed his Notice of Appeal (“NoA”)  out of time by around 2.5 weeks.  The Board decided that there was in the circumstances no justification warranting an extension of time for the applicant to file the NoA, and accordingly, by the Board’s 2^nd Decision, his appeal against the Director’s 2^nd Decision was dismissed.

The Judge’s decision

7.  The applicant filed a Form 86 on 5 March 2019 seeking to judicially review the Board’s 2^nd Decision (but not the Board’s 1^st Decision), without setting out any grounds for review.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [16] of the CALL-1 Form:

“12.  On 5 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date to which he just attached a copy of the Board’s decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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, and given the factual basis of the Applicant’s claim even on his own case that it simply did not engage the BOR 2 ground in its limited scope, there is simply no reasonably arguable basis for his intended challenge.

13.  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.

14.  In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their earlier decisions that the risk of harm in his claim if true 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.

15.  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 on all applicable grounds.

16.  For the reasons given, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at Nos.92-100 Hop Yick Road, Yuen Long (“the Address”). 

10.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 25 October 2022, which was not returned undelivered.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 25 October 2022.

12.  The applicant thereafter took out a summons in the Court of First Instance on 11 November 2022 seeking extension of time to appeal, in which his address was also stated to be at the Address.  In the summons and in his supporting affidavit filed on the same date, he merely stated that he was not satisfied with “the decision”.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 3 February 2023[6].

14.  By a summons filed on 17 February 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affidavit, the applicant merely repeated his dissatisfaction with “the decision”, that it is “unreasonable”, and that his life was still at risk should he be refouled. 

15.  In his written submissions lodged on 3 March 2023, the applicant sought “reconsideration of [his] claim application” as he was concerned “about his life”.  He also submitted that he would not even be able to gain employment as “a garbage collector” should he return to the Philippines.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  The inference to be drawn is that he has had notice of the Judge’s decision within the period which he was permitted to lodge the appeal.  In any event, the applicant has proffered no reason or explanation for the delay in bringing the intended appeal, nor has he explained how or when he had come to learn of the Judge’s decision.

18.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.  We have nonetheless proceeded to consider the merits of the intended appeal.

19.  In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its 2^nd Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  Section 37ZT(3)  of the Immigration Ordinance (Cap 115)  provides that the Board may allow the late filing of the NoA if the applicant provided sufficient evidence in writing to satisfy the Board that (i)  he had exercised all due diligence to file the NoA within the prescribed time; and (ii)  his failure to do so was due to circumstances beyond his control. 

21.  Regardless of procedural breaches committed by the applicant and the lack of explanation therefor, it is incumbent on the Board, in exercise of its discretion to extend time for appeal, to consider the merits of the applicant’s claim.  See Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430; Re Castillo Raquel Adona & anor [2022] HKCA 1053.

22.  In this case, although the consideration by the Board of the merits of the applicant’s case was set out in brief in the Board’s 2^nd Decision at [12] to [13], we are satisfied that the Board accorded due attention to the Director’s Decisions and had duly considered the substantive merits of the applicant’s claim before refusing his application for extension of time to lodge the NoA.

23.  In any event, the applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 17 February 2023 is accordingly dismissed.