CAMP 447/2022
[2023] HKCA 316
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 447 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 928 OF 2019)
________________________
BETWEEN |
| | SEVILLANO JOEBERT COLADO | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ | Putative |
| | NON-REFOULEMENT CLAIMS | Respondent |
| | PETITION OFFICE | |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
________________________
| Before: | Hon G Lam and Chow JJA in Court |
| Date of Written Submissions: | 7 November 2022 |
| Date of Judgment: | 20 March 2023 |
_____________________
J U D G M E N T
_____________________
Hon Chow JA (giving the Judgment of the Court):
1. On 27 October 2022, the Applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 20 September 2022 refusing to grant an extension of time to the Applicant to appeal against the Judge’s earlier order dated 30 May 2022 (“the Order”) refusing to grant him leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 28 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 February 2018 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 last entered Hong Kong on 20 June 2016 as a visitor. Upon examination by an immigration officer, he claimed that he intended to visit his wife for two weeks. He was allowed to stay until 4 July 2016. However, he failed to leave Hong Kong after the expiry of his limit of stay, and has overstayed since 5 July 2016. On 20 July 2016, he surrendered himself to the Immigration Department. On 12 January 2017, he lodged a non-refoulement claim alleging that, if refouled, he would be harmed or killed by a creditor called Jerry. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1433).
5. By a Notice of Decision dated 13 February 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 28 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§8-10 of the CALL-1 Form, as follows:
“[8] … On 26 October 2018, the Board conducted an oral hearing for his appeal, during which the applicant was assisted by an interpreter [5]. Before the Board, the applicant added a new claim that he would be harmed or killed by his wife’s ex-husband, abbreviated as ‘H’, who was released from the prison [8(c)].
[9] The Board considered the applicant’s additional information as listed out at paragraph 16 of the Board’s Decision. Insofar as the claim of harm from Jerry was concerned, the Board found that the applicant failed to establish that Jerry was a loan shark and had extended two loans to him [19 (a)-19(e)]. It also found that the applicant gave conflicting accounts in relation to the alleged risk of harm from H [19(f)]. As a result, the Board found that the applicant had failed to establish the risk of harm from either Jerry or H.
[10] In addition, the Board found that Jerry had not inflicted any harm which amounted to sufficient level of severity and had not harmed any of the applicant’s family despite they still resided in the home village. It also found that H had no intention to harm or kill the applicant and his wife. Further, state protection and internal relocation were both viable options for the applicant [30].”
7. On 4 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. He did not give any grounds for judicial review in the Form 86. In his supporting affirmation filed on the same date, he said that relocation was not a safe option for him, and his life was still not safe in his home country.
THE JUDGE’S DECISION
8. On 30 May 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:
“[13] In his affidavit in support of his application, the applicant said relocation to another place is still not safe in his country.
…
[17] The ground above is not valid reason to challenge the Board’s Decision.
[18] 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.
[19] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
9. On 20 September 2022, the Judge refused the Applicant’s application by summons dated 9 August 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2735).
THIS APPLICATION
10. By a summons taken out on 27 October 2022, the Applicant applied to the Court of Appeal for leave to appeal against the Judge’s order of 20 September 2022. In the summons, the Applicant stated the following:
“This is my application for summons that I was late to submit my appeal out of time. The reason’s I was stated in my summon’s and extension of my application has been refused. I request to consider my summon’s.” [sic]
11. In his affirmation filed on 27 October 2022, the Applicant said that he failed to lodge his appeal in time because he had no idea about the “bar time of appeal”, and when he received the decision it was “almost late”.
12. In his written submissions dated 7 November 2022, the Applicant repeats the basis of his non-refoulement claim, and alleges generally that the Director and the Board failed to take into account and/or give proper weight to relevant considerations and materials “which he should have, and hence his decision is illegal”.
DISCUSSION
13. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.
14. 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.
15. 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.
16. 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)).
17. 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 is an 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.
18. The Applicant has failed to point to or show any error in the Judge’s decision of 30 May 2022, and has failed to raise any viable ground of appeal against the Order.
19. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.
DISPOSITION
20. The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 27 October 2022 is dismissed.
(Godfrey Lam)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.