Case Detail

RE GACO NOMER BERGONIA

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[2021] HKCA 749-EN-2021-05-25

GACO NOMER BERGONIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CACV 383/2020

[2021] HKCA 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 383 OF 2020

(ON APPEAL FROM HCAL NO 1855 OF 2018)

_______________________

BETWEEN

	GACO NOMER BERGONIA	Applicant (Appellant)
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_______________________

Before: Hon Cheung JA, B Chu J and S T Poon J in Court

Date of Written Submission: 20 April 2021

Date of Judgment: 25 May 2021

_________________

JUDGMENT

_________________

Hon B Chu J (giving the Judgment of the Court):

1. On 29 January 2021, this Court handed down our judgment^{^[1]} (the “Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 4 August 2020 refusing leave to apply for judicial review. The applicant had sought judicial review of the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2. The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here.

3. On 7 April 2021, the applicant filed a notice of motion to apply for leave to appeal out of time against the Judgment to the Court of Final Appeal and further filed an affirmation to support seeking leave to file the notice of motion out of time. He lodged written submissions to support his application on 20 April 2021.

4. Having considered the applicant’s notice of motion, his affirmation and his written submissions, we see no reason to depart from the usual practice of determining applications of this kind on paper without an oral hearing.

5. The only reason the applicant gave in his affirmation was that he did not receive the Judgment within the time stipulated for appeal. At the hearing on 26 January 2021, the applicant was informed that the Judgment would be handed down on 29 January 2021 in the afternoon and if he did not come to collect the same, it would be posted to him at his contact address. At the hearing, this Court had confirmed with the applicant his contact address. A copy of the Judgment was posted to him on 29 January 2021 at his confirmed address and it was not returned through post. There was no evidence produced by the applicant to support his allegation that he did not receive the Judgement within the time stipulated for appeal. There were no valid reasons for his late filing of the notice of motion.

6. The applicant stated in his typed notice of motion that there was “some error in law” in the Judgment and in so far as we could make out, that the Court just relied on the COL Information and his previous facts and that actual situation was different from what was mentioned in the COL Information and that the Court ignored the overwhelming evidence of violence towards minorities, and that the Judgment “betrayed bias and formula approach”. These are all bare assertions made by the applicant without any particulars as to how they relate to the applicant’s case.

7. In the applicant’s written submissions, he cited case authorities and judicial review principles without focusing on any particulars of the circumstances of his case, or identifying any error of law in the Judgment.

8. Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal may be granted if 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. Here, the applicant’s notice of motion and written submissions do not properly identify any error in our judgment, let alone any question of great general or public importance. We do not see any basis for granting leave on the “otherwise” ground in section 22(1)(b) either. The statutory criteria of obtaining leave to appeal to the Court of Final Appeal are not met.

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

( Peter Cheung )	( Bebe Pui Ying Chu )	( S T Poon )
Justice of Appeal	Judge of the Court of First Instance	Judge of the Court of First Instance

The applicant, unrepresented, acted in person.

[1] [2021] HKCA 131

CACV 383/2020

[2021] HKCA 131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 383 OF 2020

(ON APPEAL FROM HCAL NO. 1855 OF 2018)

________________________

RE:

GACO NOMER BERGONIA

Applicant

________________________

Before: Hon Cheung JA, B Chu J and S T Poon J in Court

Date of Hearing: 26 January 2021

Date of Judgment: 29 January 2021

________________________

J U D G M E N T

________________________

Hon B Chu J (giving the Judgment of the Court) :

The Appeal

1. This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung in which he refused to grant leave to the applicant to apply for judicial review.

Factual Background

2. The applicant is a national of the Philippines. He overstayed in Hong Kong since 6 September 2009. He raised a non-refoulement claim on 27 November 2009.

3. The basis of the applicant’s claim is that he would be harmed or killed by members of an anti-government group named Alex Boncayao Brigade (“ABB”) for compromising its location leading to the arrest of some of its members.

4. The background facts have been summarized in the decision of the Judge at [4]-[6].

The Director’s Decision and the Director’s Further Decision

5. The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 22 January 2015. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

6. By a further decision of the Director of 17 May 2017, the Director also assessed BOR 2 risk (risk of violation of the right to life) in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

The Board’s Decision

7. The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 6 February 2015. After a hearing held on 3 February 2016, the Board dismissed the applicant’s appeal on 23 August 2018 (‘the Board’s Decision’).

8. The Board found that the assassination incident that the applicant alleged happened more than 9 years ago. There was no evidence that ABB still exists. There was no evidence of the location of where the assassination took place. Internal relocation was possible.

Decision of the Judge

9. The Judge held that the applicant was unable to show that he has any reasonable prospect of success for this intended judicial review.

Grounds of Appeal

10. The applicant in the notice of appeal stated that he will face hardship if he is to return to his home country. He stated that the Board relied on source of information not officially recognized or was simply hearsay. He stated that the cases the Board relied on were outdated.

11. In his written submissions, the applicant had written pages of general non-refoulement claim legal principles and case authorities without specifying how those principles related to his case.

Our View

12. During the appeal, the applicant mentioned that he had produced to the Board a screen shot from You Tube referring to the assassination incident. This was not referred to by him in his grounds of appeal, nor in his skeleton submissions. The screen shot was not included by the applicant in the appeal bundle nor produced by him during the appeal. We do not see the relevance thereof in the light of the Board’s Decision at paragraph 8 above.

13. We are of the view that the applicant’s appeal is without merits. The applicant provided no reasonably arguable grounds for judicial review. An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced. The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].

14. It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

15. We see no basis to disturb the Deputy Judge’s Decision. Accordingly, the appeal is dismissed.

(Peter Cheung)	(Bebe Pui Ying Chu)	(S T Poon)
Justice of Appeal	Judge of the Court of First Instance	Judge of the Court of First Instance

Applicant, unrepresented, appearing in person