Re Celso Noel Abenojar

CAMP 421/2021

[2022] HKCA 355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 421 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 456 OF 2019)

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J U D G M E N T

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

1.By a summons dated 4 October 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“DHCJ Lung”) dated 27 September 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 2718) (“EOT Decision”) against Deputy High Court Judge CP Pang’s (“DHCJ Pang”) order dated 26 January 2021, whereby DHCJ Pang refused the applicant’s application for leave to apply for judicial review ([2021] HKCFI 169) (“the Leave Decision”).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 12 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 April 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.The applicant is a national of the Philippines.  His last Foreign Domestic Helper contract was prematurely terminated on 2 December 2002 and he did not leave Hong Kong and overstayed since 17 December 2002.  On 26 February 2015, he was arrested by the police and referred to the Immigration Department on 27 February 2015.  He lodged a non-refoulement claim on 28 February 2015 on the basis that if refouled, he would be harmed or killed by his wife and her family members as he cheated on his wife.  Details of the applicant’s claim were summarised by DHCJ Pang at [2] ‑ [3] of the Leave Decision.

5.By a Notice of Decision dated 10 April 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.The applicant then appealed against the Director’s Decision to the Board.  He attended and gave evidence at an oral hearing before the Board on 13 December 2018 with the assistance of an interpreter who spoke the Ilocano and English languages.  The Board dismissed his appeal on 12 February 2019 and confirmed the Director’s Decision.  Having assessed the evidence, the Board did not accept that his wife and her family members had any interest in pursuing or harming the applicant upon his return to the Philippines and found that the applicant could safely relocate to another part of the Philippines.  The Board considered that the applicant failed to substantiate his case on all applicable grounds.  Accordingly, the Board dismissed his appeal.

The Leave Decision

7.On 18 February 2019, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision.  However, no ground of review was provided by the applicant in his Form 86.  In his supporting affidavit, the applicant only stated that the Board had disregarded his dangerous situation.  As no request for oral hearing was made by the applicant, his application was considered on paper.

8.By the Leave Decision, DHCJ Pang dismissed his application for leave to apply for judicial review for the following reasons:

“10. The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non‑refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

11. As the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, the Observations for the Applicant will only focus on the latter’s decision.

12. In the present case, the Board rejected the applicant’s appeal / petition on the ground that it had doubts about the truthfulness of the applicant’s claims and his delay in lodging his claim raised concerns that he had fabricated his claims. It also found that internal relocation is a reasonable option for the applicant. There was no substantial or strong ground for believing that the Appellant would be at real risk of being subjected to torture or ill-treatment, if refouled. As mentioned above, such assessment and findings are within the province of the Board and the Director. The court will not interfere with the same unless they are reversible on the public law grounds.

13. Indeed, the applicant’s conduct in the delay in lodging his claim damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.

14. The complaints raised by the applicant are primarily asking for a rehearing having no basis in support at all. He did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.

15. The Board engaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately. There cannot be any criticism of its determination which is eminently reasonable.

16. 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, irrational findings, or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness.

Disposition

17. For the reasons given, there is no prospect of success at all in the applicant’s intended application. I accordingly refuse to grant leave to apply for judicial review.”

The EOT Decision

9.Under Order 53, rule 3(4) of the RHC, the applicant may appeal against DHCJ Pang’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

10.On 24 March 2021, the applicant filed a summons together with a supporting affidavit for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was over one month late with his intended appeal.  In the EOT Summons and his supporting affidavit, he gave no ground of appeal or reason for his delay and only repeated that the Board disregarded his dangerous situation.

11.By the EOT Decision, DHCJ Lung noted that the applicant failed to raise any valid ground to say that the Board’s Decision or the Leave Decision was in error.  As the applicant was unable to demonstrate any reasonable prospect of success in his intended appeal, DHCJ Lung refused his application for extension of time to appeal.

The Present Application

12.By a summons and supporting affidavit both filed on 4 October 2021, the applicant applied for leave to appeal against the EOT Decision.  In his summons and supporting affidavit, he only stated that the Board disregarded his dangerous situation in his home country and it would be dangerous for him to return to his home country.

13.Pursuant to the directions given by the Registrar of Civil Appeals on 4 October 2021, the applicant lodged his written submissions on 18 October 2021.  In his submissions, he referred to various Country of Origin Information and contended that there were cases on extrajudicial killings, impunity and violations of human rights and that the possibility of relocation was a myth.  As to the delay of his application, he only stated that he was a foreigner and did not know where to seek help.

Discussion

14.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.We consider that the applicant’s delay over one month as substantial and that the applicant has failed to provide any cogent explanation for his delay.  Ignorance of the law on the part of the applicant is not a reasonable excuse for his substantial delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8];and Re MA [2019] HKCA 1020 at [18].

17.The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that DHCJ Pang made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.Nowhere in the summons, supporting affidavit or written submissions for the present application did the applicant identify any error in the Leave Decision with specific particulars.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

19.In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  Also, as repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: 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].

20.For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 4 October 2021 dismissed.