RE GOMEZ JEFFERSON PETALLANO

CAMP 529/2022, [2023] HKCA 1260

On appeal from [2022] HKCFI 2390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 529 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2252/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 25 November 2022 refusing to extend time for the applicant to appeal against his decision dated 4 August 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 8 October 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 31 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of the Philippines.  He last entered Hong Kong as a visitor on 23 September 2014, but he overstayed and he was arrested by the police on 1 January 2015.  On the same day, he lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being killed or harmed by his business partner Sajid.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 19 June 2018, the Board dismissed the applicant’s appeal by its Decision.  Although the Board largely accepted the applicant’s “consistent” evidence and his version of events, including the fact that the applicant was attacked by his former business partner Sajid, the harm was not inflicted by someone acting in an official capacity, and that in any event, state protection and suitable options of internal relocation were available to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 16 October 2018 seeking to judicially review the Board’s Decision, without stating any grounds of review.

7.  In his supporting affidavit, the applicant stated that he wished to “re-appeal” the Board’s Decision.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

15.  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.’

16.  There is no valid reason to challenge the Board’s Decision.

17.  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.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

9.  The applicant’s address at the time he filed the Form 86 was at Reclamation Street, Mong Kok (“the Mong Kok Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Mong Kok Address on 4 August 2022, which was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 4 August 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 27 October 2022 seeking extension of time to appeal, in which his address was stated to be the Mong Kok Address.  In his supporting affirmation filed on the same date, he deposed that he was unrepresented and had “no means to instruct a private lawyer”.  He also alleged that he had difficulties filing his application at the Registry, and that this contributed to the delay.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 25 November 2022[6].

13.  By a summons filed on 9 December 2022, the applicant sought an extension of time to appeal against the decision given by the Judge on 25 November 2022, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 4 August 2022.  Although the applicant purported to appeal against the decision of the Judge dated 25 November 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 4 August 2022, by which leave for judicial review was refused.

14.  The applicant lodged his written submissions on 23 December 2022, wherein he restated the dangers he may face from Sajid upon his return to the Philippines.  He also emphasised the difficulties faced by him in lodging the appeal on time, namely his lack of legal representation in the process and the problems and delays he faced in obtaining his recognizance papers.  In his written submission, he mentioned that his first attempt to lodge his summons seeking an extension of time in the court below was on 29 September 2022.  We note that this date was over a month out of time in any event.   

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s decision was sent to the last known address of the applicant (which at the time was the Mong Kok Address) and was not returned undelivered. The inference to be drawn is that he has received the letter from the court, and he has had knowledge of the Judge’s decision within the period which he was permitted to lodge the intended appeal.

17.  Further, we note that even allowing for the matters stated in the applicant’s written submissions regarding his alleged difficulties in filing his summons, he was still well over a month late on his first attempt to do so.  The matters contended by the applicant in his written submissions do not provide an explanation as to how and when he had come to learn of the Judge’s decision dated 4 August 2022.

18.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 9 December 2022 is accordingly dismissed.