CARAMAT VIRGINIA LOBEBAN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 265 /2019

[2020] HKCA 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 745 OF 2017)

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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.  This is the applicants’ application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 20 May 2020 ([2020] HKCA 276) refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam on 23 August 2018^[1] dismissing their application for leave to apply for judicial review concerning their non‑refoulement claim. The 1^st applicant is a national of the Philippines, the 2^nd to 4^th applicants are her minor children. She claimed that her brother would harm or kill them because she has converted to Islam and her children are also Muslims. This Notice of Motion was filed on 8 July 2020, with a supporting affirmation of the 1^st applicant.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 9 July 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  The 1^st applicant lodged a written submission on behalf of all the applicants on 22 July 2020. Having considered the papers, we think it appropriate to determine this application on paper and will do so accordingly.

Procedural history

3.  The applicants took out a summons in the court below to seek leave to appeal against the decision of DHCJ Josiah Lam out of time.  Their application was late by more than ten months exclusive of the intervening summer vacation.  It was refused by Deputy High Court Judge Bruno Chan on 14 October 2019^[2]. They renewed their application to this court for extension of time to appeal on 21 October 2019.

4.  On 20 May 2020, this court refused to extend time to appeal against the decision of DHCJ Josiah Lam, having regard to the substantial delay, which we found inexcusable, and the lack of merits of the intended appeal.

The proposed grounds of appeal

5.  In the Notice of Motion and the 1^st applicant’s supporting affirmation filed on 8 July 2020, the applicants stated that the appeal was late because they changed their address and their landlord sent back the judgment to the court so they did not know that the judgment was handed down^[3].

6.  The grounds stated in the written submission lodged by the 1^st applicant on behalf of all the applicants may be summarized as follows:

(1) In refusing to grant the extension of time, the court failed to consider that even a local may not understand the legal procedures and the time to submit, let alone someone like the applicants who are foreigners and not well-educated.

(2) In the Philippines, a Catholic country, the conversion from Catholicism to Islam could be considered as apostasy.  It is common for a Muslim to be discriminated and a Muslim can also attract abduction by Muslim terrorist group for recruiting young Muslims to fight in the Philippines.

(3) The government in the Philippines has proposed a Muslim ID to single out Muslims in the name of counterterrorism.  Such act does not only violate human rights but also affects the way Muslims are treated and they will be targeted with life threats.

(4) The Director’s assessment is a wrong decision as he failed to look into a case in context and what has been changing inside a particular country.  Such culturally insensitive judgment is an act of procedural error.

Discussion and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal. 

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9.  The filing of this Notice of Motion was three weeks late.  Good grounds have to be shown by the applicants for the court to grant them an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

10.  The applicants explained that the delay was due to their change of address so they did not receive the judgment of the Court of Appeal.  They have not filed with the court any notice of change of address for service.  It is the duty of litigants to give to the court a correct address at all times so that correspondence or notice from the court can come to their attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15).  Hence, the applicants’ explanation would not justify their delay in filing the Notice of Motion.  We are not inclined to grant an extension of time to file the Notice of Motion.

11.  In any event, the applicants have not shown any or any sufficient merits in their intended application for leave to appeal to the Court of Final Appeal.  They have not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing their application.  They have also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).  So we would have dismissed the Notice of Motion in any event.

12.  In light of the above, it is not necessary to resolve whether an appeal lies to the Court of Final Appeal from the Court of Appeal’s refusal of an extension of time to appeal from the decision of the Court of First Instance refusing leave to apply for judicial review.  A line of authority suggests that appeals against such a refusal of time by the Court of Appeal are not susceptible to further appeal and another authority is to the contrary (Re Mohammed Selim [2020] HKCFA 25 at §§6 to 7).

13.  For the above reasons, we refuse to grant an extension of time to file the Notice of Motion and dismiss the Notice of Motion filed on 8 July 2020.