RE GALIZA GOMER DADIS

CAMP 186/2019

[2020] HKCA 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 186 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 100 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 21 May 2020 ([2020] HKCA 324), this Court (Yeung VP and Pang JA) dismissed the applicant’s application for an extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”) given on 24 April 2019 in HCAL 100/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 16 January 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 23 May 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 1 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“I want to reject the decision made by the Immigration Department. While the Judge says that “the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria…she gathered a considerable amount of information…”  But she failed to consider the problems within the local context.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 2 June 2020, the applicant lodged his written submissions on 11 June 2020 in which he advanced the following grounds:

(1)  The Board’s decision was erroneous as it was insensitive to the applicant’s case and the situation in the Philippines.  He would face grave danger if he were to return to his country.  The Board overlooked or was misguided into believing that the Philippines, like Hong Kong, has rule of law.  In fact, in the Philippines law cannot really protect him. 

(2)  The court should consider whether the assessor fully understood his problems in the Philippines when assessing his case.

(3)  There are some human rights reports stating that the Philippines is fraught with unlawful and extrajudicial killing by police and armed individuals.  As such, he would not be safe to return to the Philippines.

(4)  The Director did not believe that he would possibly lose his life if he were to return to the Philippines.  In fact, the Philippines is notorious for police extrajudicial killings.  The Philippines government and the people in power can exercise brutal measure when they want to and they are protected by the government.  

4.  The Registrar had also directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  None of the grounds set out in the written submissions sought to challenge or pinpoint any error of law or procedure in our judgment and therefore, they are not viable grounds of appeal.  Further, since the applicant failed to advance any grounds of appeal before the Judge at the hearing for leave to appeal out of time below and before us in renewing the application, we are not prepared to entertain any new arguments that are fact-and-evidence sensitive which have not been canvassed before and for which leave has not been sought within time: see Re Daljit Singh[2018] HKCA 328; Re Qadir Sher[2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [40] and [41].

7.  For the reasons that we gave in our judgment of 21 May 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

8.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

CAMP 186/2019

[2020] HKCA 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 186 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 100 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a summons filed on 6 August 2019, the applicant renewed his application for an extension of time to appeal against the decision given by Campbell-Moffat J (“the Judge”) on 24 April 2019 (“the Decision”) refusing leave to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 16 January 2018, in which the Board confirmed the decision made by the Director of Immigration (“the Director”) on 23 May 2017.

2.  The applicant’s application for an extension of time to appeal was refused by the Judge on 30 July 2019.

3.  Pursuant to the directions of the Registrar of Civil Appeals given on 7 August 2019 and 27 August 2019, the applicant should lodge his written submissions on or before 13 September 2019.  The applicant had failed to do so.  

4.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the supporting affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Philippines.  He last arrived in Hong Kong on 30 December 2014 and was allowed to stay as a visitor until 13 January 2015.  He did not depart and overstayed.  He was arrested by the police on 11 February 2015 and was then transferred to the Immigration Department for investigation.   On 13 February 2015, he lodged his non-refoulement claim by way of written representation.  

6.  The applicant’s claim was based on his alleged fear that he would be harmed or even killed by Ka Rudy (“KB”) and his subordinates from New People’s Army (“NPA”) if he were to return to the Philippines because he had taken some of the revolutionary tax money from them and quitted NPA without permission. 

7.  By a Notice of Decision dated 23 May 2017, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk, BOR 3 risk, the persecution risk, and the torture risk.  

8.  The applicant appealed to the Board. After the hearing on 16 October 2017, the Board dismissed the applicant’s case on 16 January 2018. For the reasons stated in [38] to [57] of the Board’s decision, the applicant’s evidence was considered as unconvincing, unreliable and incredible. The Board rejected his account in relation to his separation with his family at his childhood, his membership with NPA and the harm that he feared as a result of his claimed desertion from NPA and the alleged taking of some of the revolutionary tax money from NPA. Since the fundamental basis of the applicant’s claim was not accepted nor was his assertion that he would be facing any risk of harm if refouled, the Board did not proceed to consider the questions of state protection and internal relocation. For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

The Judge’sDecision

9.  On 22 January 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions. In his supporting affirmation filed on the same day, he merely reiterated the background of his case which was presented before the Director and the Board.

10.  The Judge considered the application on paper and by her Decision of 24 April 2019, she focused on reviewing the Board’s decision and considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and she refused to give leave to apply for judicial review.  She gave her reasons at [11] of the CALL-1 Form:

“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.”

11.  By a summon dated 19 June 2019, the applicant sought leave to appeal against the Decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A) was expired on 8 May 2019.  In his supporting affirmation, he briefly explained that he did not receive any letter from the court and he only learnt about the Decision from the immigration officer at Castle Peak Immigration Centre when reporting bail.

12.  By the decision dated 30 July 2019, the applicant’s summons was dismissed.  The Judge was sceptical about the reasons for the delay in taking out the summons, nonetheless, gave him the benefit of doubt and then went on to consider the merit of his application.  The applicant provided no grounds of appeal and made no submission for his complaint at the hearing and he merely urged the court to consider his situation afresh and to allow him to remain in Hong Kong.  In the absence of any valid ground to support his intended appeal, the Judge dismissed the summons accordingly.

The Renew Application

13.  By the summons dated 6 August 2019, the applicant renewed the matter before us.  He did not provide any grounds of appeal in the summons or in his supporting affirmation except by saying that the court decisions disregarded his dangerous situation and he did not know the law and legal process.

Legal Principles

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Even if the court does not accept that an applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346. 

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

17.  In the present summons, we would adopt the same approach as the Judge and focus on the issue of merit of the intended appeal.  The applicant did not provide any grounds of appeal to pinpoint any errors of law or procedural impropriety or irrationality of the Decision, thus the intended appeal is bound to fail. 

18.  Further, the applicant’s case was rejected by the Board on its entirety and the Board found him an untruthful witness.  The applicant raised no grounds of review against the Board’s decision in his application for leave to apply for judicial review. Notwithstanding the lack of valid grounds to support intended appeal, the Judge had carefully reviewed the Board’s decision and had rightly come to the conclusion that the applicant’s application was not reasonably arguable and had no reasonable prospect of success.  We found nothing amiss from the Decision.

19.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 6 August 2019 is dismissed accordingly.

20.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.