Sumagang Jade Rivero v. Torture Claims Appeal Board

CAMP 339/2022

[2022] HKCA 1804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 339 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2523 OF 2018)

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J U D G M E N T

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

1.On 6 September 2022, the Applicant took out a summons to apply for an extension time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 14 December 2021 refusing to grant him leave to apply for judicial review (“the Order”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 16 August 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 September 2017 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of the Philippines. He arrived in Hong Kong on 7 July 2008 as a visitor with permission to remain up to 22 July 2008. He did not depart after the expiry of his limit of stay and overstayed instead. On 25 September 2008, he surrendered himself to the police. After he was referred to the Immigration Department for investigation, he raised a torture claim (which was later taken as a non-refoulement claim) alleging that, if refouled, he would be harmed or killed by the mayor of his home district for broadcasting the mayor’s illegal drug dealings on the radio. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 3744).

5.By a Notice of Decision dated 4 March 2015, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3] (“the Director’s Initial Decision”).

6.The Applicant appealed the Director’s Initial Decision to the Board. On 12 May 2017, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Initial Decision (“the Board’s First Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision, the Board found on the material and information before it that the Applicant’s claimed threats from the mayor were solely based on hearsay information without any other reliable evidence or personal experience by the Applicant other than his own speculations, that he was unable to prove any evidence of the mayor’s involvement in the alleged drug dealings, that in any event the mayor’s power was restricted only within Ozamiz area, and that in the absence of any state involvement or of the government that state/police protection would be available to the Applicant upon his return to the Philippines as well as reasonable internal relocation for him to safely move to other areas away from his home district or the mayor’s jurisdiction that his claim for non-refoulement protection failed on all applicable grounds.”

7.Meanwhile, on 2 May 2017, the Director on his own initiative invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[4]. In the absence of any response from the Applicant, the Director, by a Notice of Further Decision dated 5 September 2017, rejected the Applicant’s non-refoulement claim based on BOR 2 risk (“the Director’s Further Decision”).

8.On 28 March 2018, the Applicant filed another appeal to the Board against the Director’s Further Decision. The Applicant was outside the 14-day period stipulated in Section 37ZS(1) of the Immigration Ordinance (Cap 115) to file this notice of appeal. Pursuant to Section 37ZT(2) of the Immigration Ordinance, the Board proceeded to decide as a preliminary issue whether to allow the late filing of his notice of appeal.

9.By a written decision dated 16 August 2018, the Board refused to allow the late filing of the Applicant’s notice of appeal because his delay of more than 6 months was considered to be inordinate, his explanation that he needed time to find his proof of address and to prepare for the appeal was considered not acceptable, and nothing in the factual basis of his application for non-refoulement protection disclosed any special circumstances by reason of which it would be unjust not to allow the late filing of his notice of appeal (“the Board’s Second Decision”).

10.On 9 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Second Decision.

THE JUDGE’S DECISION

11.On 14 December 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[14] In the Applicant’s case, the Board had earlier already properly and correctly rejected his claim under all the other applicable grounds including torture risk, BOR 3 risk and persecution risk for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 38 of its earlier decision, and given the basis of his claim is even based on his own case and the limited threshold and scope of a BOR 2 claim, it is plain that the Applicant’s claim does not engage the BOR 2 ground, and in the absence of any error of law or procedural unfairness in the Board’s second decision being clearly and properly identified by the Applicant, I simply do not see any reasonably arguable basis to challenge the findings of the Board in either of its decisions.

[15] Furthermore, the fact is that it has been established by both the Director and the Board in their respective earlier decisions 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.

[16] 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.

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

12.On 24 August 2022, the Judge refused the Applicant’s application by summons dated 21 January 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2565).

THIS APPLICATION

13.By a summons taken out on 6 September 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order. In his supporting affirmation filed on the same date, the Applicant merely stated as follows:

“I am requesting for appeal, for the application for extension of time to appeal be refused.”

14.In the Applicant’s 2-page written submissions dated 3 October 2022, he repeated the basis of his non-refoulement claim, and alleged that “the lower courts only rely on prima facie evidence rather than circumstance evidence based on my statement e.g.”.

DISCUSSION

15.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

17.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

18.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

19.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 14 December 2021, and has failed to raise any viable ground of appeal against the Order.

20.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

21.The application for extension of time to appeal is refused, and the Applicant’s summons of 6 September 2022 is dismissed.

The Applicant, acting in person