Case Detail

GALIZA GOMER DADIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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[2019] HKCFI 1922-EN-2019-07-30

GALIZA GOMER DADIS v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 100/2018

[2019] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 100 OF 2018

___________________

BETWEEN
	GALIZA GOMER DADIS	Applicant
and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before: Hon Campbell Moffat J in Chambers

Date of Hearing: 30 July 2019

Date of Decision: 30 July 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 19 June 2019 for appeal from my decision of 24 April 2019 refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order. The applicant attended court in person with the benefit of an interpreter.

Procedural background

2. The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. He entered Hong Kong legally on 30 December 2014 and thereafter overstayed. He was not arrested until 11 February 2015. He submitted a non‑refoulement claim form on 25 April 2017 and was interviewed by the Director of Immigration (“the Director”) on 17 May 2017. The Director dismissed his claim under all heads, by Notice of Decision on 23 May 2017. He appealed that decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mrs Sydelle Muling (“the Adjudicator”), heard him on 16 October 2017. The Adjudicator refused his appeal on 16 January 2018.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 January 2018 and did not request an oral hearing. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 24 April 2019. He had 14 days from that date to appeal that decision which would have expired on 8 May 2019. By way of summons dated 19 June 2019, he seeks leave to appeal out of time.

4. An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 15. The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

5. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. He claims he did not receive the Order on time but gave no further explanation in his supporting affidavit. The court file indicates that he gave an address on 2/F of Yen Dack Building, 93-113 Chun Yeung Street, North Point on his Form 86 dated 19 January 2018. However, because his recognizance (Form 8) indicated a different address, the court wrote for confirmation from the Immigration Department (“the Department”). On 22 June 2018, the Department gave his address as Room 5, 4/F, 137 Un Chau Street, Sham Shui Po. It was to the Sham Shui Po address that the Order of this court dated 24 April 2019, was posted. The address given by the applicant for the purposes of appeal is the same as his original address, ie the Yen Dack Building address. He maintained he has been at this address since being in receipt of International Social Service assistance, which would date his residency from April 2017. I gave the applicant the benefit of the doubt on this issue. However, the applicant then maintained that he had only learnt of the Order of this court when informed by the Department at the time of his reporting. He maintained initially that he reported on the first Friday of each month. Later, he suggested it may be later than that and eventually, he suggested that he had been told of the Order of the court on 14 June 2019, when an officer had provided him with a printout of the Form CALL-1 of this court from the Judiciary website. Thereafter, he came to court and filed his appeal on 19 June 2019. His answer in this respect was unconvincing and evasive.

6. Even if the court were to accept the reasons given for the delay, the court is nevertheless required to examine whether there is any merit in the applicant’s appeal[1]. The applicant had no submissions in this regard. There being no submissions, it is difficult for the court to find that these submissions indicate a reasonable prospect of success in the intended appeal. The role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator on the underlying merits of the original claim for refugee status. It follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions. It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis. This was explained to the applicant but he was unable to indicate any complaint.

Conclusion

7. Despite being sceptical about his reasons for delay in filing his appeal, the court has given the applicant the benefit of the doubt and then went on to consider his underlying application and whether there were any grounds of appeal. His claim for refugee status has no merit as explained in the initial refusal of leave. There were no grounds of review before the court and none could be ascertained from the papers. Neither was there any complaint before the court today as to the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider his situation afresh as he asks to be allowed to remain in Hong Kong. Having considered the length of delay, reason for the delay, the underlying merits of his application and lack of grounds of appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

8. The applicant’s summons dated 19 June 2019 be dismissed.

	(A P Campbell Moffat)
	Judge of the Court of First Instance High Court

The applicant appeared in person.

[1]Re Mehmood Ikhlas CAMP 28/2019 [2019] HKCA 567

HCAL 100/2018

[2019] HKCFI 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 100 of 2018

BETWEEN

	Galiza Gomer Dadis	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or
consideration of the documents and the Applicant being present/absent in open court

Order by The Honourable Mrs. Justice Campbell-Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1. The applicant entered Hong Kong lawfully on 30 December 2014 but thereafter overstayed. He was arrested by the police on 11 February 2015. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 13 February 2015. His NRF claim form was submitted on 25 April 2017.

2. The applicant attended a screening interview on 17 May 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 23 May 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mrs Sydelle Muling (“the Adjudicator”), heard his appeal on 16 October 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 16 January 2018.

Background

4. The applicant is a Filipino national. He was born on 23 December 1985 in Bagu. He is single and worked as a construction worker until 2010. In 2010, he joined the New People’s Army (“NPA”) and maintains that he was employed as a messenger. He carried out this function between 2010 and 2014. In 2014, however, he was tasked with killing someone. As he did not want to do so, he stole money from the NPA and fled to Manila until he came to Hong Kong. The applicant believes that he will be killed by the NPA if he is returned to the Philippines. He has had no contact with anyone in the Philippines since his arrival in Hong Kong.

The non-refoulement claim

5. Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii.  Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under “persecution risk”, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to his home state.
iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6. It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real riskor real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Director

7. The applicant seeks to review the decisions of both the Director and the Adjudicator. As the applicant has already utilised the channel of appealing the Director’s Decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

8. The Adjudicator analysed the applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator obtained a considerable amount of further information during the hearing which highlighted the implausibility of the applicant’s scant account. She found the applicant to be unconvincing. She did not accept that he had been separated from his family at a young age, or that he had scavenged for a number of years before joining the NPA in order to survive. His story about his function and role in the NPA was also disbelieved. Accordingly, he had not met the burden placed upon him to establish his claim under any head.

Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator 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 that case appropriately. She gathered a considerable amount of further information which highlighted a significant number of improbabilities within the case of the applicant. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.

Dated the 24^th day of April 2019.

(Marcus Wong)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant:

If leave has been granted, the Applicant or his solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Sent to the Applicant on 24 April 2019

Galiza Gomer Dadis

Applicant’s ref. no:
Nil.

Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 April 2019

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7340/17/6/36/F378

Department of Justice for Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/2620/16 (RBGI/599/16, RBCZ-12817-16)

Form CALL-1

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court