Re Odtujan Derbe Cris Victoria

CAMP 544/2021

[2022] HKCA 248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 544 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2426/2018)

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Before:  Hon Barma JA and Au JA in Court

Date of Judgment:  25 February 2022

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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 KW Lung (“the Judge”)  dated 22 July 2020 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 11 April 2017 and 5 October 2018 (“the 1^st and 2^nd Board’s Decisions” respectively), dismissing the appeals against the decisions of the Director of Immigration (“the Director”)  dated 12 May 2015 and 10 July 2017 rejecting the applicant’s non-refoulement claim (“the Director’s 1^st and 2^nd Decisions” respectively).

Background

2.The applicant is a national of the Philippines. He entered Hong Kong on 17 July 2009 and was permitted to remain as a visitor. He overstayed and was arrested by the police on 26 August 2009.  The applicant thereafter lodged a torture claim on 25 February 2010.

3.The applicant’s claim was based on a fear of being harmed or killed by his neighbours.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 12 May 2015 and a Further Notice of Decision dated 10 July 2017, the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[2], the persecution risk[3] and the BOR 3 risk[4], while the Director’s 2^nd Decision covered the BOR2 risk[5]. 

5.The applicant appealed to the Board.  The Board dismissed the applicant’s appeal in respect of his claim based on the BOR 3 risk, the persecution risk and the torture risk without a hearing.  In reaching this decision, the Board assumed that the applicant’s version of events put forward in his non-refoulement claim form and screening interview was truthful.  The Board concluded that the events described by the applicant did not disclose a real or existing risk of harm, and even if such risk existed, it could be reduced by internal relocation and state protection

6.As for the applicant’s claim based on the BOR 2 risk, after a hearing on 29 May 2018, at which the applicant was present, the Board dismissed the appeal on 5 October 2018.

The Judge’s decision

7.The applicant filed a Form 86 on 1 November 2018 seeking to judicially review the Board’s Decisions.  The Judge summarised the grounds relied upon by the applicant as follows (at [12] of his decision):

“1. Procedural impropriety: failure to conduct sufficient inquiry into the relevant country of origin conditions.

2. Procedural impropriety/irrationality: failure to conduct oral hearing for BOR 2 claim and failure to provide sufficient opportunities to him to present his case.

3. Error/misdirection in law: failing to take into account the considerations of psychological strain and threats to him personally or threats to kill him; also failing to consider that he faced real risk from the brothers as they were still looking for him.

4.  Unreasonableness: insufficient reasons to make decision against his claim, in particular BOR 2 risk.”

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 [13] to [18] of the CALL-1 Form:

“13.  The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. He could read the Decisions himself.

14.  The Board in paragraph 17 of its decision said that it was unnecessary for it to go over the merits of the immigration officer’s decision, relying upon AM v Director of Immigration HCAL 102/2012 (paras. 28-29). I would like to point out here that the Board misunderstood the authority. This authority held that the Board had the power to hear the applicant’s case afresh de novo, but it did not say that this is the only option open to the Board, quite the contrary. See paragraph 30 of the Judgment. Under Section 18 (1)  (a)  of Schedule 1A of the Ordinance, the Board has the power to consider the same evidence of the immigration officer. As it will be a waste of costs and time for the Board to rehear the case fresh if it can adopt the evidence and findings of the Director’s Decision, it is incumbent upon it to state the reason for rehearing the case de novo. See paragraphs 17 & 19 of Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

‘13. (1)…Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

16.  The grounds above are his general opinions without any evidence in support of them. They do not constitute any valid reasons in support of his application.

17.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

9.The applicant’s address as stated in his Form 86 was at Aplieu Street, Sham Shui Po, Kowloon (“the Aplieu Street Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Aplieu Street Address on 22 July 2020.  This letter was not returned undelivered.

10.The applicant took out a summons in the Court of First Instance on 7 October 2020 seeking extension of time to appeal, in which his address was stated to be at Tai Po Road, Sham Shui Po, Kowloon (“Tai Po Road Address”).  In his supporting affirmation filed on the same date, he stated that he did not receive the Judge’s order and decision in time. 

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 22 July 2020.

12.The applicant’s application to appeal out of time was dismissed by the Judge on 2 November 2021[6].

13.By a summons filed on 1 December 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant simply stated that he did not receive the decision of the court and alleged that the court’s letter had been lost in the post.

14.In his written submissions dated 15 December 2021, the applicant referred to ST v Director of Immigration (sic)[7] [2014] 4  HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1  HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1)  that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2)  that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3)  that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim. 

Discussion

15.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.

16.As noted above, the Judge’s Decision was sent to the last known address of the applicant (which at that time was the Aplieu Street Address)  on 22 July 2020, and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

17.The date on which the applicant had moved from the Aplieu Street Address to the Tai Po Road Address is not known.  In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible.

18.In the circumstances, we reject the applicant’s explanation or reason for his delay in lodging his intended appeal.

19.We have nonetheless proceeded to consider the merits of the intended appeal.

20.The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decisions were said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.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.

22.Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on how they were misapplied or contravened in the processing of his non-refoulement claim.

23.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.

24.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 1 December 2021 is accordingly dismissed.

The applicant acting in person