FABIO ARLYN TIMOGAN AND OTHERS v. EVAN RUTH, ESQ, ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 32/2020

[2023] HKCA 150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 32 OF 2020

(ON APPEAL FROM HCAL 442 OF 2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 27 November 2020, this court (Lam VP (as Lam PJ then was), Barma and Au JJA)  handed down a judgment dismissing the 1^st applicant’s appeal (but allowing the 2^nd and 3^rd applicants’ appeals)  against the decision of Deputy High Court Judge Bruno Chan given on 15 January 2020 refusing to extend time for the applicants to apply for leave for judicial review. The 1^st applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal from the decisions of the Director of Immigration rejecting her non-refoulement claim.

2.  The appeals of the 2^nd and 3^rd applicants, being the 1^st applicant’s children, were allowed.  In addition to granting the 2^nd and 3^rd applicants leave to apply for judicial review, this court proceeded to determine the substantive application for judicial review and quashed the decision of the Board in respect of the claims of the 2^nd and 3^rd applicants.  We also issued an order of mandamus directing the Board to reconsider the claims of the 2^nd and 3^rd applicants, with legal representation to be provided to them at the rehearing of their appeals.

3.  The facts and issues in the 1^st applicant’s appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

4.  The 1^st applicant subsequently applied, purportedly also on behalf of the 2^nd and 3^rd applicants, by a Notice of Motion filed out of time on 2 June 2022, for leave to appeal to the Court of Final Appeal.

5.  In the Notice of Motion, the 1^st applicant stated that:

“… The High Court and the Court of Appeal dismissed my leave to apply for judicial review, at least I want to go to the Court of Final Appeal for leave. Please permit.”

6.  In her supporting affidavit, the 1^st applicant deposed:

“Affidavit for apply of Notice of Motion but out of scheduled time. Please accept my Notice of Motion application and permit me to go to the Court of Final Appeal.”

7.  In her written submissions lodged on 16 June 2022, the 1^st applicant repeated, inter alia, her complaints against and the alleged threats posed by her husband who resided in the Philippines.

8.  Having considered the 1^st applicant’s Notice of Motion, affidavit and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the 1^st applicant’s application on the basis of the documents filed.

9.  Notwithstanding that the Notice of Motion was purportedly filed by the 1^st applicant not only in respect of her own appeal but also on behalf of the 2^nd and 3^rd applicants, since we have already determined the substantive application for judicial review by the 2^nd and 3^rd applicants in their favour, we shall treat the Notice of Motion as an application for leave to appeal to the Court of Final Appeal by the 1^st applicant only.

10.  The 1^st applicant failed to explain how and when she eventually came to know about the judgment of this court.  We are therefore of the view that the 1^st applicant has failed to provide a reasonable explanation for the delay.  Further, the delay of around 18 months in bringing the present application is very substantial, and it is liable to be dismissed on this basis alone.  However, we have nonetheless proceeded to consider the merits of the application.

11.  So far as the merits are concerned, the matters advanced by the 1^st applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The 1^st applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.

12.  None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion filed on 2 June 2022 is dismissed.