RE ESMIRALDE NAGUIMBING RUZ

CAMP 304/2023, [2025] HKCA 399

On an intended appeal from [2023] HKCFI 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 304 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 23/2019)

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J U D G M E N T

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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 August 2023 refusing to extend time for the applicant to appeal against his decision dated 16 January 2023 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 November 2017 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 3 March 2017 (“the Director’s Decision”)  refusing the applicant’s request to re-open his non-refoulement claim.

Background

2.  The applicant is a national of the Philippines.  He lodged a non-refoulement claim on the basis that his life would be in danger should he be refouled.

3.  In processing the applicant’s claim, on 18 October 2016, the Director served a Notice and a blank Supplementary Claim Form (“SCF”)  on the applicant. By the Notice, the applicant was informed that he must return the completed SCF to the Immigration Department within 28 days.  On 8 November 2016, a written request was served by the Director, through the Duty Lawyer Service (“DLS”)  on the applicant, requiring him to return the completed SCF and all available supporting documents, failing which his non-refoulement claim would be treated as withdrawn.

4.  Upon the DLS’s request, the Director granted the applicant an extension of time for the submission of his claim and the relevant forms until 25 November 2016.

5.  On 24 November 2016, the DLS informed the Director that the applicant was uncontactable and that DLS had ceased to act for him.  On 2 December 2016, the Director informed the applicant by letter that his claim was treated as withdrawn as of 26 November 2016 by reason of his failure to return and submit the completed SCF as requested.

6.  By a letter dated 24 February 2017, the applicant made a request to the Director to re-open his claim on the basis that he could not attend the screening interview with the DLS because he needed to take care of his children and his family, and that he could not afford the transportation expenses for the purpose of attending the interview.

7.  By the Director’s Decision, the applicant’s request to re-open his non-refoulement claim was refused by reason that he had failed to return the completed SCF and had also failed to provide any evidence in support of any circumstances beyond his control which caused his failure to return the SCF.

8.  The applicant appealed to the Board against the Director’s Decision.  In its Decision dated 8 November 2017 reached without an oral hearing, the Board set out and considered the procedural history of the matter at [1]-[7], and dismissed the applicant’s appeal for the same reasons given by the Director.

The Judge’s decision

9.  The applicant filed a Form 86 on 4 January 2019, which was substantially out of time, for leave to apply for judicial review against the Board’s Decision.  The applicant did not set out any grounds for review.  In his supporting affirmation filed on the same date, he merely stated that he wished to apply for judicial review, and exhibited copies of the Director’s and the Board’s Decisions.

10.  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 to the applicant to apply for judicial review.  The Judge gave the following reasons in refusing to grant leave at [14] to [27] of (“the CALL-1 Form”[1]):

“14.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The deadline for the applicant to file the notice of appeal is on 8 February 2018. The delay is therefore more than months and he has not given any explanation for his delay. On this basis, his application should be dismissed. However, I shall, nevertheless, consider the merits of the applicant’s case.

15.  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).

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

17.  The question before this Court is whether the Board is correct in dismissing his appeal against the Director’s Decision refusing to re-open his non-refoulement claim for the reason that he had failed to return a completed torture claim form as required under section 37Y(2)  of the Ordinance and he had failed to give sufficient evidence in writing to satisfy the immigration officer the reasons as stated in section 37ZG(3)  set out below.

18.  Section 37ZG provides, inter alia:

Deemed withdrawal of torture claim on failure to return completed torture claim form

(1)  A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2)  An immigration officer must give the person who made the claim a written notice stating that—

(a)   the torture claim is treated as withdrawn under subsection (1); and

(b)   the person may apply to re-open the claim under subsection (3).

(3)  A torture claim treated as withdrawn under subsection (1)  may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that the person— (Amended 7 of 2021 s. 14)

(a)   had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b)   failed to return a completed form as required under the section because of circumstances beyond the person’s control. (Amended 7 of 2021 s. 14)

19.  The facts are not in dispute. The applicant had failed to return the completed torture claim form as required under section 37Y(2). The immigration officer had given a letter dated 2 December 2016, informing him that his non-refoulement claim was treated as withdrawn on 26 November 2016 due to his failure to return the completed NCF within the time limit. Although in this letter, the immigration officer did not give notice to the applicant that he may apply to re-open the claim under subsection (3)  as provided under section 37ZG(2)(b)  of the Ordinance, the fact that the applicant had, by letter of 24 February 2017, requested for re-opening his non-refoulement claim had shown that the applicant had already had notice of his right and he had exercised his right. Thus, this non-compliance with section 37ZG(2)(b)  of the Ordinance has not caused any prejudice to the applicant’s right.

20.  It is also undisputed that the applicant had given his reasons for non-compliance with section 37Y(2)  for not submitting the completed NCF to the immigration officer. His reasons are:

(1)   he could not attend screening interview as he was too busy for taking care of his two babies and family; and

(2)   he was not able to afford the transportation cost for attending the screening interview. See paragraphs 4-6 of the Director’s Decision.

21.  The Director did not accept that his explanations are due to circumstances beyond his control as required under section 37ZG (3)(b)  of the Ordinance because those difficulties could be overcome by other means such as the service of the NGO [Non-Government Organizations] or the Social Welfare Department. See paragraph 8 of the Director’s Decision.

22.  The Board agreed with the Director. It further found that the applicant’s ground of appeal being that his case was closed without a chance for him to undergo screening was a predicament of his own making. He was legally represented and he had been given extension of time to submit the NCF. However, he had failed to comply with the statutory requirement. See paragraphs 9 and 10 of the Board’s Decision.

23.  The applicant has given no valid reason to challenge the Board’s Decision.

24.  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.

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

CONCLUSION

26.  His application for judicial review of the Director’s Decision is dismissed.

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

The present application for extension of time to appeal

11.  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 16 January 2023.

12.  The applicant took out a summons in the Court of First Instance on 13 July 2023 seeking extension of time to appeal.  In his supporting affirmation filed on the same date, he set out his purported grounds for review for the first time, stating, inter alia, that the Board acted in a procedurally unfair and unreasonable manner in refusing to allow him to re-open his case.  His application was dismissed by the Judge by his decision dated 25 August 2023.[2]

13.  By a summons filed on 11 September 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on 25 August 2023, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 16 January 2023. Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 25 August 2023, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 16 January 2023, by which leave for judicial review was refused.

14.  In the summons and in his supporting affirmation, the applicant sought to “elaborate” on his purported grounds for judicial review, which were not set out before the Judge in his determination of the leave application.  Such ‘elaboration’ were essentially matters which he had stated in his affirmation in support of the summons for extension of time before the Judge.

15.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the Court.  He is therefore deemed to have abandoned his right to rely on the same.

16.  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.

Discussion

17.  There is nothing to suggest that the applicant did not receive the CALL-1 Form and order by the Judge, which was sent to his last known address and which was not returned undelivered.

18.  In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.  He has also wholly failed to explain to this Court on which date and under what circumstances he had become aware of the Judge’s decision.

19.  In the circumstances, we consider that the applicant has failed to proffer any reasonable explanation or reason for his delay in lodging his intended appeal.

20.  In any event, notwithstanding the applicant’s delay in renewing the present application, we do not see any merit in the intended appeal.

21.  Section 37ZG(1)  of the Immigration Ordinance (Cap 115)  provides that a torture claim “must be treated as withdrawn” if the applicant fails to return a completed SCF.  Section 37ZG(3)  provides:

“A torture claim treated as withdrawn under subsection (1)  may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that the person—

(a)  had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

  (b)  failed to return a completed form as required under the section because of circumstances beyond the person’s control.”

22.  The question of whether sufficient evidence had been provided by an applicant for the purpose of re-opening the claim was a matter for the Director and, on appeal, for the Board to determine.  It is not for the Court of First Instance, still less for this Court, to substitute its own opinion on that question.  See Re Mughal Zia Ur Rehman [2021] HKCA 1622 at [24].  In the present case, the applicant in fact provided no evidence in support of his request to re-open his claim.

23.  In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

24.  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.

25.  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.

26.  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 11 September 2023 is accordingly dismissed.