RE DOCTOR MANUEL DELA CRUZ

CAMP 80/2020

[2021] HKCA 332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 80 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2493 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This court (Hon Yuen and Au JJA) handed down judgment on 8 January 2021 ([2021] HKCA 12) dismissing the applicant’s application to extend time to appeal an order of DHCJ K. W. Lung (“the Judge”) given on 17 June 2019 refusing to give the applicant leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 7 August 2019, the applicant filed a summons for leave to appeal out of time, which the Judge dismissed on 26 June 2020. 

3.  On 3 July 2020, the applicant had filed a summons in this court, which as mentioned earlier we dismissed on 8 January 2021.  The facts and issues in the intended appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

4.  On 11 January 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. 

5.  The Notice of Motion contains the following grounds of appeal:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

6.  On 12 January 2021, the Registrar of Civil Appeals directed that the applicant shall lodge his written submissions on or before 25 January 2021, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

7.  The applicant lodged his written submissions on 25 January 2021 in which he quoted passages from ST v Director of Immigration^[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, he did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist his application to this court.

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.

9.  The applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.     

10.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.  By reason of the above, the Notice of Motion filed on 11 January 2021 is dismissed.

CAMP 80/2020

[2021] HKCA 12

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 80 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2493 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yuen JA (giving the Judgment of the Court):

1.  On 17 June 2019, DHCJ K.W. Lung (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 2 July 2019.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 7 August 2019 for extension of time to appeal (which was late by more than 1 month).  That summons was dismissed by the Judge on 26 June 2020. 

3.  On 3 July 2020, the applicant filed his summons in CAMP 80/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing. The applicant filed his written submissions on 17 August 2020 pursuant to the directions made by the Registrar of Civil Appeals.  

Background

5.  The brief background is as follows.  The applicant is a national of the Philippines.  He was a construction worker.  He supported Rodrigo Duterte (now the president of the Philippines) and was a member of a political party PDP which campaigned against drugs.  He was a political officer, distributing flyers with anti-drugs messages from November 2015 to March 2016.  He met a drugs user and dealer called “JA” three times.  JA orally threatened to kill him and sent him threatening text messages at a number provided by the applicant in a flyer.  Although JA’s threats were only verbal and not physical, and although the applicant never asked anyone (whether within his own party or the police) for help, he decided to leave his home country and arrived in Hong Kong on 27 June 2016 as a visitor.  He overstayed and surrendered to the Immigration Department on 14 July 2016.  He was released on recognizance on 1 August 2016 and raised his claim for non-refoulement on 22 March 2017. 

6.  The applicant’s allegations in support of his claim have been set out in detail in the Decision of the Torture Claims Appeal Board (“TCAB”).  It is notable that since his arrival in Hong Kong, his party has come into power in the Philippines, and many drugs dealers and users have been apprehended.  He admitted at the hearing before the TCAB that he has not heard from, or about, JA since his arrival in Hong Kong (e.g. where JA is located, whether he has been apprehended, or even whether he is still alive) [37].      

7.  The applicant was assisted by an interpreter at the hearing before the TCAB.  The TCAB accepted that the applicant’s evidence was consistent [30]-[38].  However, even on the facts asserted by the applicant himself, the TCAB determined that there was insufficient evidence that his alleged fear of JA in the circumstances above came within the grounds of torture risk, BOR 3 risk, persecution risk or BOR 2 risk [48], [62], [68], [71].

8.  His claim was accordingly dismissed by the TCAB for reasons set out in the Decision of 29 October 2018. 

Application for leave to start judicial review

9.  On 7 November 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB’s Decision.  The grounds put forward by the applicant were summarized by the Judge in [10] of the JR Decision:

“(1) the Adjudicator had unlawfully fettered his discretion;

(2) the Adjudicator acted in a procedurally unfair manner;

(3) the Board’s Decision was unreasonable and irrational in the public law sense or is a result of procedural errors or unfairness;

(4) the Adjudicator failed to meet the greater case and duty owed to a self-represented claimant; and

(5) the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case.”

The JRDecision

10.  The Judge held a hearing at which the applicant appeared.  On 17 June 2019, the Judge refused leave for reasons set out in [11] - [18] of the Form CALL-1 ([2019] HKCFI 1559):

"11.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

12.  I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.

13.  The Court of Appeal in Re: Moshsin Ali[2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

14.  This is a clear case that the applicant brought the fear upon himself without any facts or evidence in support of it. The Adjudicator had applied the statutory provision and the Convention to his case before he came to the above findings. There is nothing amiss in his approach in the dealing of the applicant’s appeal.

15.  Grounds (1) to (4) are his opinions without any evidence in support of them. They fail.

16.  Ground (5) fails as it was inconsistent with what he said before this Court.

17.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

18.  Since the applicant’s intended application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 7 August 2019 for extension of time to appeal.  That was dismissed by the Judge on 26 June 2020.  Hence, the summons to this court.

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean that an extension will be granted).  As for (1), the applicant was late by more than 1 month between the JR Decision and the summons filed in the Court of First Instance.  His delay was not negligible. 

13.  As for (2), the reasons for the delay, the applicant stated in his summons and supporting affirmation that his late application was due to the fact that he did not receive the sealed order, CALL-1 and Judgement “within 14 days from 26 June 2020” (emphasis added).  That does not explain the delay in his intended appeal from the JR Decision.  The court records show that the CALL-1 was sent to him on 17 June 2019.  

14.  However, the most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s proposed grounds are general, vague and bare assertions.  As can be seen in the JR Decision, the proposed grounds of unfairness before the TCAB [11] and the allegation of a late hearing bundle ([11] and [16]) were not supported by what he said before the Judge.  Accordingly, the Judge was right to refuse leave to start judicial review.

15.  It is well-established that the application for leave to start judicial review proceedings is not a re-hearing by the judge of the TCAB proceedings, and the function of this court is to consider any alleged errors on the part of the judge.  We do not see any in this case.    

16.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 3 July 2020.

17.  Since the present application is totally without merit, we further make an order under Order 59 r. 2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing.