CUESTA LYNDON SANCHEZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 350/2024, [2025] HKCA 152

On Appeal From [2024] HKCFI 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 350 OF 2024

(ON APPEAL FROM HCAL NO 1651 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 appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 20 August 2024[1] 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 14 March 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 15 February 2017 rejecting the applicant’s request to re-open his case.

Background

2.  The applicant is a Filipino. He made a torture claim on 25 February 2010.  Upon the commencement of the unified screening mechanism in March 2014, his torture claim was taken to be a non-refoulement claim and assessed on all applicable grounds, i.e. BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]  Yet, as the applicant failed to submit his non-refoulement claim form (“NCF”) within time as directed by the Director, his application was deemed to have been withdrawn on 17 February 2015.

3.  On 7 October 2016, the applicant applied to re-open his claim. He was directed to provide necessary information to support his application, but he failed to comply with that direction.  On 15 February 2017, the Director rejected the applicant’s request to re-open his claim.

4.  The applicant appealed the Director’s decision to the Board on 28 September 2018. The Board considered that the appeal could be justly determined without a hearing and the case was therefore proceeded with on such basis.

5.  Although the Board accepted that the applicant was locked out of his room by his landlord in February 2017 due to non-payment of rent and had lost his documents, the Board found that the lockout happened two years after he was required to submit his NCF, so that he still failed to explain his failure to submit the NCF back in 2015. The Board was therefore not satisfied that the applicant was unable to return the NCF as required due to circumstances beyond his control. Accordingly, the Board dismissed the applicant’s appeal and confirmed the Director’s decision on 14 March 2019.

The Judge’s decision in the court below

6.  On 17 June 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.  In the accompanying affirmation, he simply stated that his life is still in danger if he returns to the Philippines. As the applicant was absent for the oral hearings fixed on 10 April 2024 and 12 June 2024, the Judge considered the application on the basis of the documents alone.

7.  On 20 August 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The question for this Court is whether the Board was right to uphold the Director’s Decision refusing to allow the applicant to re-open his claim, which was deemed to have been withdrawn because he failed to submit the NCF to the Director.

15. Under section 37ZG of the [Immigration] Ordinance, the applicant’s application is deemed to have been withdrawn if he did not return a completed NCF within the time as directed by the Director. He may apply to re-open his claim withdrawn if he is able to provide written evidence to satisfy the immigration officer that he had exercised all due diligence, and yet, was unable to do so because of circumstances beyond his control.

16. The Board had considered the applicant’s explanation for failing to submit the completed NCF to the immigration officer as directed. The Board had given [its] reasons […] to dismiss his appeal and confirmed the Director’s Decision refusing to re-open his claim…

17. The applicant was clearly in breach of the law for failing to submit the NCF to the immigration officer. He did not have any satisfactory explanation for his failure to do so. The Board was right to implement the law accordingly.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

Appeal to this Court

8.  On 30 August 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal was, essentially, that his life is still not safe in the Philippines. 

9.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

10.  The applicant has lodged written submission in which he stated that he feared he would be killed by members of his former organisation, which he did not identify. He also denied that he could avoid the risk by internal relocation as the said organisation was very influential.

11.  On 15 November 2024, the applicant filed a Request for Dismissal of Appeal requesting that his appeal be dismissed. Despite this, we shall briefly discuss the merits of his appeal.

Discussion

12.  In assessing the merits 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 [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 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, 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.

13.  As noted by the Judge in [15] of the Form CALL-1, under section 37ZG of the Immigration Ordinance, a torture claim is deemed to have been withdrawn if the applicant failed to return a completed NCF within the prescribed time. The claim can only be re-opened if the applicant was able to provide written evidence to satisfy the immigration officer that he had exercised all due diligence to return the NCF, but failed to return it because of circumstances beyond his control.

14.  As explained above, the question whether sufficient evidence had been provided for reopening the claim was a matter for the Director and, on appeal, the Board to decide. In the present case, the Director rejected the applicant’s request to re-open his claim because he failed to provide necessary information to support his application. The Board also dismissed the applicant’s appeal because it was not satisfied that he was unable to return the NCF due to circumstances beyond his control.    

15.  The Director and the Board are entitled to make those findings based on the evidence they received and for the reasons they gave. It is not for the Court of First Instance, still less for this Court, to substitute its own opinion on that question.  The courts cannot intervene unless the Board’s decision is vitiated on recognised public law grounds.

16.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. Equally, he has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

17.  Pursuant to the applicant’s request for dismissal and for the reasons above, this appeal is dismissed.

18.  On 13 January 2025, the court was notified by the Director that the applicant had been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.