GARCIA FREDDIE LUZON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 168/2021

[2022] HKCA 1182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 168 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1575 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA)  handed down on 18 March 2022 ([2022] HKCA 391). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Campbell-Moffat J dated 23 June 2020 ([2020] HKCFI 1331)  refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 April 2022 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 5 May 2022.  Having considered his submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of the Philippines and was arrested in Hong Kong for overstaying on 26 March 2009.  He subsequently lodged his non-refoulement claim on the basis that he would be harmed or killed by men looking for him as he had witnessed a murder in his home province of Quezon in the Philippines. 

4.  The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  It was refused by the judge on 4 May 2021[1].

5.  The applicant renewed his application to the Court of Appeal on 18 May 2021.  The application was dismissed by the Court of Appeal on 18 March 2022 as there is no prospect of success in the intended appeal[2].

Grounds of appeal

6.  In the Notice of Motion, the applicant did not provide any particular grounds of appeal other than stating that the court disregarded his dangerous situation. 

7.  His written submissions dated 5 May 2022 are identical to the submissions he lodged before this court dated 2 July 2021.  It is not necessary to repeat them here.

Analysis and disposition

8.  Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), an 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 application for leave to appeal. 

9.  Good grounds have to be shown by the applicant for the court to grant an extension of time.  The relevant factors in considering whether 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.  Under Section 22(1)(b)  of the Ordinance, it is provided 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.

11.  The applicant was late for one week in filing his Notice of Motion.  As no explanation was given for the lateness, we find that he has failed to show any good ground to grant an extension of time to file the Notice of Motion.

12.  In any event, the ground of appeal in the Notice of Motion is devoid of merits.  He has clearly failed to demonstrate that the Court of Appeal was wrong in dismissing his application.  Furthermore, he has 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).

13.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 22 April 2022.