Re Ganitano Benny Ganotice

CACV 427/2020

[2021] HKCA 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 427 OF 2020

(ON APPEAL FROM HCAL 1364/2018)

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Before:  Hon Barma JA and L Wong J in Court

Date of Hearing: 24 May 2021

Date of Judgment:  4 June 2021

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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 appeal against the decision of Deputy High Court Judge Bruno Chan given on 27 May 2020 refusing to grant extension of time for his application for leave for judicial review and dismissing his application for leave 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 (“Board”) dated 20 April 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 16 March 2015 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of the Philippines.  He entered Hong Kong on 8 October 2012 to work as a foreign domestic helper and was arrested on 14 May 2013 on suspicion of taking up unapproved employment.  He lodged a non-refoulement claim on 21 October 2013.

3.The applicant’s claim was based on threats from a man known as RY who is alleged to be a politically well-connected person and was suspected to have arranged the killing of the applicant’s brother-in-law in connection with disputes arising out of an election in which RY was an unsuccessful candidate.  The details of the applicant’s claim have been summarised by the judge at [1] to [5] of the CALL-1 Form.

4.By a Notice of Decision dated 16 March 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 July 2016, the Board dismissed the appeal on 20 April 2017 (“Board’s Decision”).

6.At [19] - [20] of the Board’s Decision, the Board found that the evidence by the applicant was not reliable and that his true intention in coming to Hong Kong was not to work as a foreign domestic helper but to seek another job with higher pay.  The Board held that the applicant was not a genuine claimant.  The Board was also satisfied at [25] that state protection would be available for the applicant and at [39] that internal relocation would be viable.

7.By a Notice of Further Decision dated 1 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

The judge’s decision

8.The applicant filed a Form 86 on 12 July 2018 against the Board’s Decision, which contained the following grounds for judicial review, as summarized by the judge at [11] of CALL-1 Form:

(1)   that the Board erred in failing to maintain high standard of fairness by not delivering its decision to the applicant within reasonable period;

(2)   that the Board failed to apply the minimum standards of procedural fairness required in its decision-making process; and

(3)   that it was unfair for the Board to assess the applicant’s non-refoulement claim as untrue.

9.In his affirmation in support of the leave application filed on 12 July 2018, the applicant deposed that:

“1. I reported…for regular recognizance. I was informed…that my Non-refoulement Appeal has been refused by [the Board] and therefore, my recognizance ceases immediately.

2. I pleaded with the officer that I have not received any decision from [the Board] and I should be given an opportunity to clarify the matter with [the Board] but my plea was refused

3. I have been informed that [the Board] considers my Non-refoulement claim is not true.  I am shocked by this decision.”

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissed his application for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [19] of the CALL-1 Form:

“12. As noted above, the Applicant was by then way out of time with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13. As the last day of the three-month period for the Applicant to file his Form 86 for judicial review of the Board’s decision fell on 20 July 2017, hence he was late by more than 10 months with his intended application even after discounting the month of August 2017 for the Court’s summer vacation, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14. In the Applicant’s case, a delay of more than 10 months must be regarded as very substantial or excessive, for which he did not provide any explanation, and while it is noted that he was then being detained at the Castle Peak Bay Immigration Centre, in the absence of any further particulars as to when he was first detained there, and the fact that he was still able to file his Form 86 and supporting affirmation while being detained, that in my view cannot be a valid reason for his such serious delay. As such and in the circumstances I do not accept that he has provided any good reason for his delay.

15. As for the merits, if any, of his intended application, his proposed grounds as stated above all appear to me just all broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Board or the adjudicator had erred in the decision, or in what way did the Board fail to apply high standards of fairness in its determination of his claim, or how was any procedural unfairness committed in his process before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

16. As has been repeatedly emphasized by the Court of Appeal, 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.

17. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.

18. 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly his leave application is dismissed.”

Grounds for appeal

11.In the CALL-1 Form, the applicant was directed by the judge to seek leave to appeal against the decision if the applicant wished to appeal.  The applicant did so within 14 days from the CALL-1 Form but by the time his application was considered by the judge, it was no longer necessary to seek leave to appeal following the Court of Final Appeal decision in H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 (handed down on 14 July 2020) which held that leave to appeal was not required in respect of an application for leave to bring judicial review proceedings that had been dismissed for delay.  The judge granted an extension of time for the applicant to file his notice of appeal on 27 August 2020.

12.In the Notice of Appeal filed on 4 September 2020, the applicant contended that:

“I would like to review the decision and make an appeal or having an extension for leave to apply because of my reasonable matter regarding my dangerous situation. My life is in danger and I would really appreciated of you granted my request.”

13.In his skeleton submissions lodged on 26 April 2021, the applicant submitted that:

(1)   the judge failed to consider his lack of legal knowledge and the situation of him being detained when considering his delay in bringing the leave application;

(2)   the report prepared by the Amnesty International for the Philippines in 2017/2018 suggests there are problems in the Philippines.  The applicant does not believe he will be safe upon his return;

(3)   the Filipino government could “exercise brutal measure” and the applicant will not be safe in the Philippines;

(4)   even if the applicant relocates to another part of the country, he will be living like a fugitive and it is therefore not a viable option; and

(5)   while the applicant is not an important official or a famous dissident, his life is still under threats and therefore should receive protection.

14.We heard the appeal on 24 May 2021.  The applicant appeared at the hearing but had nothing to add to the matters already stated in his Notice of Appeal and written submission.

Discussion

15.The Notice of Appeal contains no valid ground of appeal.  We therefore consider the matters raised in the written submission.

16.The applicant referred to a number of human rights reports in the written submission.  Those reports were not put forward before the judge and no leave to adduce them as new evidence has been sought.  We are not satisfied that the conditions for admitting new evidence on appeal laid down in Ladd v Marshall [1954] 1 WLR 1489 are satisfied in respect of these reports and we therefore do not give any weight to them.

17.As for the ground of appeal based on the difficulties of internal relocation, we observe that this ground was never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise this matter on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

18.As for the other grounds of appeal based on the alleged danger upon his return, those grounds do not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.  Further, those grounds are bare assertions by the applicant which were not supported by any evidence and cannot assist him.

19.The applicant also claimed that the judge failed to consider his situation in considering the issue of delay in bringing the leave application.  The judge did in fact consider his detention at the Castle Peak Bay Immigration Centre at [14] of CALL-1 Form but the judge did not accept that was a good reason for the delay.  We have considered the judge’s reasoning at [14] and we cannot find any error in it.

20.The applicant did not rely on the lack of legal representation as an explanation for his delay in bringing the leave application.  There was therefore no need for the judge to consider this issue.  In any event, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice.

21.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant appeared in person