RE MATIBAG RONNEL PAET

CAMP 244/2023, [2025] HKCA 745

On appeal from [2023] HKCFI 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 244 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 634 OF 2019)

____________________

____________________

________________

JUDGMENT

________________

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 Bruno Chan (“the Judge”) dated 13 January 2023 ([2023] HKCFI 129) dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affidavit. Despite directions given by the Court, he has not provided any 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 35.  On 2 August 2008, he came to Hong Kong as a visitor.  He overstayed and was arrested by the police on 26 March 2009.  He later made a torture claim.  Due to his failure to file the required questionnaire within the given time limit, the Director of Immigration (“the Director”) treated his claim as withdrawn on 27 November 2013.  

5.  On 27 December 2013, the applicant lodged a non-refoulement claim.  The basis of his claim was set out in detail in [7] of the Director’s decision and summarised by the Judge in [2] to [4] of the Form CALL-1.  In gist, the applicant claims he witnessed a person named Arnold committing a murder in 2007 and he fears Arnold will harm or kill him.   

6.  By a decision dated 10 May 2018, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], persecution risk[2] and BOR 2 risk^[3] grounds.  There was no assessment under the torture risk[4] ground in light of the previous dismissal of the torture claim.  The Director’s reasons were summarised by the Judge in [6] of the Form CALL-1. 

7.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board.  An oral hearings were held on 22 October 2018 during which the applicant gave evidence and answered questions from the Board. 

8.  By its decision given on 22 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 found the applicant’s evidence inconsistent and unconvincing and doubted the credibility of his claimed fear and reasons for leaving his country.  The Board also found state protection and internal relocation options reasonably available to the applicant.  The Board’s decision and reasons were summarised by the Judge in [8] of the Form CALL-1.    

9.  On 6 March 2019, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the Board’s decision. Other than stating in his affidavit that his dangerous situation had been disregarded, the applicant did not provide any ground for seeking relief.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper.  By the Form CALL-1 dated 13 January 2023, the Judge refused to give leave to the applicant to apply for judicial review, holding that the intended judicial review has no prospect of success.  In brief, the Judge noted that the applicant had not put forward any grounds for seeking relief.  The Judge also found no error of law or procedural unfairness in the decisions of the Director and the Board, or failure to adhere to the high standards of fairness in the process before the Director and the Board and their consideration and assessment of the applicant’s claim. 

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.  The 14-day period for the applicant to appeal ended on 27 January 2023.

11.  By a summons filed on 3 April 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing held on 8 June 2023, and by his decision handed down on 8 June 2023 ([2023] HKCFI 1577) 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 about nine weeks, which is a significant delay.  In the Court below, the applicant explained that he did not receive the Judge’s decision and he was only informed of it by the Immigration Department.  The Judge did not consider this a satisfactory explanation since the Form CALL-1 and the court order were sent to the address provided by the applicant and had not been returned by the Post Office.  We see no reason to differ from the Judge’s view.

14.  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.

15.  The applicant has not provided any ground to support his intended appeal.  He merely stated in his affirmation accompanying the present summons that his dangerous situation has been disregarded. 

16.  We are of the view that the applicant’s intended appeal has no prospect of success.  First, as the Judge correctly pointed out, 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.  

17.  Further and importantly, the applicant has not pointed to any error in the Judge’s reasoning and decision.  On the legal principles set out above, the intended appeal is unarguable.

18.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 5 July 2023.