RE ZAMORA ROWEL ESPIRITU

CAMP 194/2022

[2022] HKCA 1883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 194 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 224/2019)

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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 31 December 2021 refusing to grant an extension of time to the applicant to apply for leave for judicial review. The intended judicial review was purportedly against (i) the decisions of the Director of Immigration (“the Director”) dated 14 May 2015 (“the Director’s 1^st Decision”) and 27 October 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim; and (ii) the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office (“the Board”) dated 28 July 2015 (“the Board’s Decision”) refusing the applicant’s application for late filing of a notice of appeal against the Director’s 1^st Decision.

Background

2.  The applicant is a national of Philippines.  He entered Hong Kong on 30 June 2012 as a visitor, and he was arrested by the police on 29 July 2012 for overstaying.  He raised a non-refoulement claim on 17 August 2012.

3.  The applicant’s claim was based on a fear of being harmed or killed by a Mr Arnel due to a marital dispute.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 14 May 2015 (i.e. the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[2], the persecution risk[3] and the BOR 3 risk[4].

5.  The applicant sought to appeal against the Director’s 1^st Decision to the Board, but filed his notice of appeal/petition (“NoA”) out of time (by 4 days).  The Board, after considering the applicant’s reasons for the delay and the merits of his claim with reference to the Director’s 1^st Decision, dismissed the applicant’s application to file the NoA out of time on 28 July 2015 (i.e. the Board’s Decision”).

6.  By a Notice of Further Decision dated 27 October 2017 (i.e. the Director’s 2^nd Decision”), the Director decided against the applicant’s claim based on the BOR 2 risk^[5].  The applicant did not appeal to the Board against the Director’s 2^nd Decision.

The Judge’s decision

7.  The applicant filed a Form 86 on 23 January 2019 purportedly seeking to judicially review the Director’s and the Board’s Decisions.  In accordance with the principles set out in Re Moshsin Ali [2018] HKCA 549, the Judge rightly treated the intended review as against the Board’s Decision (see CALL-1 Form at [11]).  The application for leave for judicial review was more than 3 years out of time.

8.  In his affidavit filed on 23 January 2019, the applicant deposed:

“I am not satisfied on the decision of Immigration Director and TCAB for the reason that they did not mention the important factor of my claim.”

9.  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 an extension of time for the applicant to apply for leave for judicial review.  The Judge gave the following reasons in refusing to grant an extension of time at [13] to [26] of the CALL‑1 Form:

“13.   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 delay of more than 4 years is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

’13. …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16.  The subject matter for this application is the Board’s Decision refusing to extend time for the applicant to file his Notice of Appeal.  The delay is 4 days.

17.  Under section 37 ZT (3) of the Ordinance, the Board has to consider the following factors:

i.   if there are any special circumstances; and

ii.  it will be unjust not to allow the late filing of the notice of appeal.

18.  In this case, the delay is only 4 days and the applicant is acting in person without legal assistance. His reason for the delay is forgetfulness, which was not accepted by the Board.

19.  The Board had considered the Director’s Decision, the applicant’s grounds of appeal in the notice of appeal and the adjudicator stated “I cannot understand what he was trying to say.  What he stated was incoherent.  There is no substance in his Grounds of Appeal/Petition.”

20.  It is always the duty of the applicant to present his case to the Board for consideration in a comprehensible manner. Ultimately, the Board is bound by the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019:

‘20. … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.’

21.  The Board had considered the Director’s Decision and the applicant’s grounds of appeal and found that there is no merit in his intended appeal.

22.  The applicant has not complained that the Board did not understand his grounds of appeal or set out his grounds of appeal afresh. His ground in support of this application is that the Director and the Board did not mention the important factor of his claim. But he has not specified what the important factor of his claim is.

23.  His ground in support of this application does not assist his application. The Board had considered the Director’s Decision on the merits of his case and come to its conclusion that he had no merits in his intended appeal.

24.  I have also considered the Director’s Decision myself and I agree with the Director that he does not have any merits in his claim. The Board is clearly justified to hold that he has no merit in his intended appeal.

25.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

26.  I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

10.  The applicant’s address of correspondence had changed numerous times since the filing of his Form 86 in 2019.  The court was informed, on 22 December 2021 by the Immigration Department, of his last known address, which was at 10-20 Whitty Street, Sai Ying Pun (“the Whitty Street Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Whitty Street Address on 31 December 2021.  This letter was not returned undelivered.

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 31 December 2021.

12.  The applicant took out a summons in the Court of First Instance on 4 March 2022 seeking extension of time to appeal, in which his address was stated to be at Percival Street, Causeway Bay.  In the summons and his supporting affirmation, he claimed that he did not receive “the order and judgment within 14 days”.   

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 20 April 2022[6].

14.  By a summons filed on 15 June 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant claimed that he did not receive the Judge’s order dated 31 December 2021 “due to the order being lost in post”.

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

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.  As noted above, the Judge’s decision dated 31 December 2021 was sent to the last known address of the applicant (which was at the time the Whitty Street Address) on the same day, and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

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.

19.  The applicant has also failed to state the date on which he became aware of the Judge’s order, and he has also failed to proffer any reasonable explanation or reason for his delay in lodging his intended appeal.

20.  The extension of time application before the Judge was taken out by the applicant around 7 weeks after the expiry of the 14-day period within which he was permitted to appeal against the decision of the Judge.  There was a further delay of 6 weeks in respect of his present renewed application for extension of time before this court.  The delay is not insignificant, and the application could be dismissed on this basis alone. 

21.  We have nonetheless proceeded to consider the merits of the intended appeal.

22.  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 (and an extension of time to apply for such leave) was hopeless and rightly dismissed by the Judge.

23.  Section 37ZT(3) of the Immigration Ordinance (Cap 115) provides that the Board may allow the late filing of the NoA if the applicant provided sufficient evidence in writing to satisfy the Board that (i) he had exercised all due diligence to file the NoA within the prescribed time; and (ii) his failure to do so was due to circumstances beyond his control. 

24.  Regardless of procedural breaches committed by the applicant and the lack of explanation therefor, it is incumbent on the Board, in exercise of its discretion to extend time for appeal, to consider the merits of the applicant’s claim.  See Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430; Re Castillo Raquel Adona & anor [2022] HKCA 1053.

25.  In this case, although the consideration by the Board of the merits of the applicant’s case was set out in brief in the Board’s Decision at [8] to [9], we are satisfied that the Board accorded due attention to the Director’s 1^st Decision and had duly considered the substantive merits of the applicant’s claim before refusing his application for extension of time to lodge the NoA.

26.  In any event, 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 to bring judicial review proceedings was wrong.  Nor can we discern any such matters.

27.  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.

28.  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 15 June 2022 is accordingly dismissed.