RE MIJARES JERO OLIVEROS

CAMP 52/2024, [2025] HKCA 744

On appeal from [2023] HKCFI 2154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 52 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 977 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 24 August 2023 ([2023] HKCFI 2154) dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affidavit and also provided a written submission to support his application.   

3.  Under Order 59 rule 14A (1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing. 

4.  The applicant is a national of the Philippines now aged 46.  He last arrived in Hong Kong on 11 November 2015 as a visitor.  He overstayed and was arrested by the police on 26 March 2016.  He later made a non-refoulement claim.  The basis of his claim was set out in detail in [8] to [24] of the decision of the Torture Claims Appeal Board (“the Board”).  In gist, the applicant claims in 1994 his ex-girlfriend (“Rowena”) was pregnant by him and later gave birth to a girl.  Rowena’s father who is a Muslim and was then the village chief of a neighbouring village and his sons had threatened to kill the applicant, and Rowena’s elder brother and his friends had assaulted the applicant.  The applicant fears that he will be harmed or killed by Rowena’s family if he were to return to the Philippines.   

5.  By a decision dated 29 May 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim, having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk^[4] grounds.    

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board.  An oral hearings were held on 14 December 2018 during which the applicant gave evidence and answered questions from the Board. 

7.  By its decision given on 12 February 2019, the Board dismissed the appeal on the ground that the applicant failed to establish his entitlement to no-refoulement protection under either of the applicable grounds.  The Board was prepared to accept that the applicant had a relationship with a Muslim young woman who had given birth to a child, and that he had been beaten by Rowena’s brother on two occasions.  The Board, however, did not accept that as a result of that relationship there is a real risk, or there are substantial grounds to believe, that the applicant will be subjected to harm that meets the requirements of any of the applicable grounds.      

8.  On 10 April 2019, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the Board’s decision. Other than saying in his affidavit that he rejects and disagrees with the decision made on his claim, the applicant did not provide any specific ground for seeking relief.  

9.  The applicant did not request for an oral hearing.  The Judge dealt with the application on paper.  By the Form CALL-1 dated 24 August 2023, the Judge refused to give leave to the applicant to apply for judicial review, holding that there was no error of law, irrationality or procedural unfairness in the Board’s decision, and the intended judicial review has no realistic prospect of success.    

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.  By a summons filed on 28 December 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 5 March 2024 ([2024] HKCFI 611) refused the application. 

12.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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. 

13.  The applicant was late by more than three months, which is a significant delay.  In the Court below, the applicant did not provide any explanation for the delay. 

14.  In the present summons, the applicant stated that he did not receive the letter but gave no details.  We do not consider this a satisfactory explanation since the Form CALL-1 and the court order were sent to the address provided by the applicant in the Form 86 and accompanying affidavit and had not been returned by the Post Office.  

15.  We turn next to consider the merits of the intended appeal, which is the most important consideration.  We would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

16.  The applicant has not provided any ground to support his intended appeal.  In his written submission, the applicant reiterated the basis of his non-refoulement claim and complained that the Board made many errors, the Judge did not hold an oral hearing and failed to consider his arguments. 

17.  We are of the view that the applicant’s intended appeal has no prospect of success.  First, the applicant has not provided any grounds for seeking relief in his Form 86 or the accompanying affidavit.  He has simply failed to show that his intended judicial review has any prospect of success.

18.  Second, given that he has provided no grounds or arguments to support his application, there is no basis for his complaint that the Judge did not consider his arguments.

19.  Third, as the applicant did not request for an oral hearing for his leave application, the Judge was entitled to deal with his application on paper: see Order 53 rule 3(4) of the Rules of the High Court. 

20.  Fourth, while he asserts that the Board made many errors, the applicant has not pointed to any specific error.  Nor has he provided any particulars to support his assertion.    

21.  As the applicant’s intended appeal has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 21 March 2024.