FERROLINO JASMIN PUNO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 87/2023, [2023] HKCA 1073

On appeal from [2022] HKCFI 2918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 87 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 3688 OF 2019)

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J U D G M E N T

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

1.  Upon the applicant’s request to withdraw her application, Deputy High Court Judge K W Lung dismissed the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim on 11 October 2022[1].

2.  On 13 December 2022, the applicant filed a summons with the Court of First Instance stating that she wants to continue her judicial review. The summons was dismissed by the judge on 18 January 2023[2].

3.  On 24 February 2023, the applicant filed the present summons with the Court of Appeal stating that she does not want to go back to the Philippines. As the time for appealing against the judge’s decision has already expired, this application should be treated as an application for extension of time to appeal against the judge’s decision of 18 January 2023[3].

4.  The applicant is a national of the Philippines. She last arrived in Hong Kong as a visitor on 5 July 2016. She subsequently overstayed and made a non-refoulement claim on 1 August 2016 on the basis that her husband would kill her if she returns to the Philippines as she has a child with another man.

The decisions of the Director and the Board

5.  The applicant’s claim was considered as withdrawn by the Director of Immigration (“the Director”) as the claim form was not submitted by the applicant within the prescribed time.

6.  The applicant requested to re-open her case and the request was rejected by the Director on 23 August 2018.

7.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 18 June 2019. The Board considered that the applicant had failed to show that her failure to return the completed forms as required was due to circumstances beyond her control. The Board was not satisfied that the claim should be re-opened and dismissed the appeal on 18 July 2019.

The judge’s decision

8.  On 10 December 2019, the applicant filed a Form 86 and an affidavit in HCAL 3688/2019 to seek leave to bring judicial review against the Board’s decision. In her supporting affirmation, she stated that she wants to apply for judicial review because she does not want to go back to her country as her husband threatened to kill her.

9.  On 5 September 2022, the applicant filed an affidavit indicating that she wants to withdraw her judicial review because she wants to go back to the Philippines and her life is not in danger anymore. DHCJ Lung therefore dismissed the leave application on 11 October 2022.

Analysis and disposition

10.  On 24 February 2023, the Registrar of Civil Appeals directed the applicant to lodge written submissions in support of her summons on or before 10 March 2023. It was further directed that the applicant will be deemed to have abandoned her right to rely on written submissions and the application will be referred to the Court of Appeal for consideration based on the available documents and materials if she fails to lodge written submissions before the deadline. The applicant did not lodge any written submissions as directed. She is deemed to have abandoned her right to rely on written submissions and we proceed to consider her application on the existing materials.

11.  In considering whether to extend time for appealing, the court will take into account: (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.

12.  The applicant did not provide any explanation for the delay in filing the present application. As there is nothing to show that the delay is excusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

13.  In the summons filed with the court below on 13 December 2022, the applicant stated that she wants “to continue [her] judicial review” because she cannot go home to the Philippines as her husband cannot accept her son in Hong Kong and their lives are in danger. In dealing with this summons in his decision on 18 January 2023, the judge treated it as an application for extension of time to appeal against his decision dismissing her leave application for judicial review on 11 October 2022[4]. He dismissed the summons of 13 December 2022 on the basis that as her leave application was dismissed upon her request to withdraw, there is nothing she could appeal against and the court is functus officio insofar as the leave application is concerned as the order for dismissal of that application has been sealed[5].

14.  On the wording of the summons of 13 December 2022, it seems more appropriate to treat this as an application to re-open the leave application for judicial review rather than an application for extension of time to appeal against the dismissal of the leave application.

15.  Had the summons been treated as an application for re-opening the application for leave to bring judicial review, the judge would be right in saying that the court has become functus officio after the leave application has been dismissed and the dismissal order has been sealed. Whereas when the summons was treated as an application for extension of time to appeal, the judge would still have the discretion to deal with the application after the sealing of the order for dismissal of the leave application.

16.  Having said that, the application for extension of time to appeal is devoid of merits as the applicant did not put forward any viable ground against the judge’s decision in dismissing the leave application. In particular, the judge is entitled to dismiss the leave application without assessing the merits when the applicant withdrew the application of his own accord (Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(2)).

17.  In the present application, the applicant failed to show that she should be allowed to re-open her application after the dismissal of the application or that she should be granted extension of time to appeal. She has not demonstrated that there is any prospect of success in the intended appeal. We therefore refuse to grant extension of time to appeal and dismiss the summons filed on 24 February 2023.