RE VINTOLA ZOILO ALAIN REY GOCELA

CACV 570/2021

[2022] HKCA 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2021

(ON APPEAL FROM HCAL 2166 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the Court):

1.  On 18 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J)  judgment of 13 May 2022 (“the Judgment”)  ([2022] HKCA 634). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 7 December 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3608).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  In his Notice of Motion, the applicant stated:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the ovewheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 31 May 2022.  In those submissions the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

6.  In our view, the applicant’s intended appeal has no merit at all.  The matters raised in his Notice of Motion and written submissions are general, bare and vague in nature and the applicant failed to show how the cited legal propositions were relevant to his case.  More importantly, his assertions are all directed to the Director and the Board.  Nowhere did he identify how this Court had erred in the Judgment.  As such, nothing set out in the Notice of Motion and his written submissions can be considered as viable grounds of appeal to the Court of Final Appeal.

7.  Further, it is trite that the 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].

8.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, he has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 18 May 2022 is dismissed.

The applicant acting in person

CACV 570/2021

[2022] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2021

(ON APPEAL FROM HCAL 2166 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 7 December 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 3608).

2.  The intended judicial review is to challenge the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 27 September 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 12 June 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of the Philippines.  He last arrived in Hong Kong on 17 November 2017 as a visitor.  He overstayed and surrendered to the Immigration Department on 19 December 2017.  He lodged a non-refoulement claim by written representations dated 2, 4 and 17 April 2018 respectively on the basis that he would be harmed or killed by Mayor Christina Garcia Frasco and her people due to his refusal to be an assassin.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

4.  By a Notice of Decision dated 12 June 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]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

5.  On 20 June 2018, the applicant appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 6 September 2018.  The Board dismissed his appeal on 27 September 2018.  The Board found that that there were inconsistencies in his evidence which undermined its credibility and that most of his assertions were made on his belief and speculations without basis on the accepted facts.  Even taking his case to the highest, there was little to prove that the feared risk of harm would materialise.  In any event, state protection and internal relocation were available to the applicant.  Accordingly, the Board dismissed his appeal.

The Leave Decision

6.  On 8 October 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review of the Board’s Decision.  He did not provide any ground of review in his Form 86.  In his supporting affirmation, he only stated that the Board’s Decision was unfair and unreasonable without giving any particulars or elaboration.

7.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  The Deputy Judge held that:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration[2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1)  .… …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.’

15. He has submitted no valid ground to assist his application. The grounds are only his opinions without evidence in support of them.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The Appeal

8.  On 16 December 2021, the applicant filed a Notice of Appeal against the Leave Decision.  However, no ground was given in support of his present appeal.

9.  Pursuant to the directions of this Court dated 4 March 2022 and 30 March 2022, the applicant lodged his written submissions on 12 April 2022.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.  More importantly, none of his submissions identified any error in the Leave Decision.

10.  We heard the appeal on 26 April 2022.  A Tagalog interpreter was present to provide language assistance.  At the hearing, the applicant confirmed that he had nothing further to add to his written materials.  However, he said that it was now difficult for him to produce some relevant documents in support of his claim, but he might be able to do so some time in the future.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

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

13.  Nowhere in his Notice of Appeal or written submissions did the applicant identify any error in the Leave Decision.  The matters raised in his written submissions were general and vague and only related to complaints directed at the Director and the Board, which had been properly addressed by the Deputy Judge in his reasons.  The applicant failed to identify anything to demonstrate why the Deputy Judge was wrong in the Leave Decision.  The authorities cited by the applicant therefore do not assist his case.  The applicant’s latest assertion at the hearing is that he might be able to produce some documents in the future which would support his non-refoulement claim is clearly nothing but an afterthought.  The assertions are vague and without any specifics.  He cannot even identify what kind of documents he says he will produce in the unspecified future.

14.  As there is simply no viable ground of appeal, the appeal ought to be dismissed on this basis alone.

15.  In any event, we have reviewed the decisions of the Board and of the Deputy Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Leave Decision.

16.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person