RE HERMOZA EMERITO FRANCO

CAMP 298/2022, [2024] HKCA 673

On Appeal From [2022] HKCFI 548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 298 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2201 OF 2018)

____________________

RE:

HERMOZA EMERITO FRANCO

Applicant

____________________

Before :

Hon Cheung and Chow JJA in Court

Date of Decision :

19 July 2024

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1.  On 25 April 2023, this Court handed down decision ([2023] HKCA 584) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 23 February 2022 refusing his application to extend time for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 3 July 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has also lodged written submission within time.

3.  Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that 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 extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by about one month and eleven days.  The applicant in the supporting affirmation simply said in brief that he did not receive the judgment within the time stipulated for appeal without further explanation or particulars.  According to Court record, our decision was sent by ordinary mail to the applicant’s last known address on 25 April 2023.

7.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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.

8.  The notice of motion stated the following :

‘ I would like to infomr 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 favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.’

9.  In the applicant’s written submission, the following was stated in summary :

1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

2)  The Decision has a significant effect on the applicant’s torture claim;

3)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D‑G;

5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

6)  The Court should not usurp the function of the Secretary;

7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination: R v Home Secretary, Ex-Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

8)  The applicant should be given every reasonable opportunity to establish his claim;

9)  The Adjudicator did not properly assess the applicant’s credibility;

10)  The Court has the power to interfere in a public body’s decision if it is Wednesbury unreasonable;

11)  The modified Wednesbury test is that of beyond the range of responses open to reasonable decision-maker: R v Ministry of Defense ex.p. Smith; and

12)  Late filing of notice of appeal to the Board may only take account of statement of reason and any other relevant matter: section 37ZT.

10.  We are of the view that no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

(Peter Cheung) Justice of Appeal

(Anderson Chow) Justice of Appeal

  

Applicant, unrepresented, acting in person

CAMP 298/2022, [2023] HKCA 584

On Appeal From [2022] HKCFI 548

 

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 298 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2201 OF 2018)

________________________

RE:

HERMOZA EMERITO FRANCO

Applicant

________________________

Before:

Hon Cheung and Chow JJA in Court

Date of Decision:

25 April 2023

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving the Decision of the Court)  :

I. Renewed application for extension of time to appeal

1.  On 11 October 2018, the applicant issued his application for leave to apply for judicial review by Form 86.  On his Form 86, the applicant indicated that the intended judicial review was against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (‘the Board’)  dated 12 May 2017.  In fact, the Board’s decision was dated 14 March 2018.

2.  By a decision dated 23 February 2022 ([2022] HKCFI 548)  (‘the Decision’), Deputy High Court Judge K W Lung : 1)  refused to grant the applicant an extension of time to apply for judicial review; and 2)  dismissed his application.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A)  (‘RHC’), the applicant had 14 days to appeal against the Decision (by 9 March 2022).  However, it was not until 23 June 2022 that the applicant took out a summons seeking extension of time to appeal.  The applicant was out of time for 3.5 months.  By a decision dated 27 July 2022 ([2022] HKCFI 2129), the Judge refused the applicant’s application for extension of time to appeal.

4.  By summons dated 10 August 2022 (‘the Summons’), the applicant renewed his application to this Court for extension of time to appeal.

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 10 August 2022, the applicant was to lodge written submissions in support of his renewed application on or before 24 August 2022.  The applicant failed to do so, and therefore the applicant is treated as having abandoned his right to rely on written submissions.

6.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

7.  The applicant is a national of the Philippines.  He entered Hong Kong lawfully on 17 May 2008 but overstayed since 15 June 2008.  On 27 August 2009, the applicant made a non-refoulement claim.

8.  The basis of the applicant’s claim is that he joined a certain basketball team in 1990.  Such team organized war games with the use of fake firearms.  After the applicant joined such team for about two years, he was asked by the team leader to participate in assassinations of corrupt local politicians.  The applicant joined a few of those operations as a lookout or back-up.  After a few months the applicant decided to leave the team.  Later he learnt from his parents that the team leader was killed by the end of 1992.  His mother also told him that the basketball team was believed to be affiliated with the New People’s Army (‘NPA’), an armed wing of the Community Party of the Philippines.  The applicant says that on three occasions in 1993, 1997 and 2008 respectively, he encountered three accidents allegedly involving the basketball team members.  Out of fear, the applicant fled to Hong Kong.

III.  TheDirector’s Decision

9.  By two decisions dated 24 November 2014 and 12 May 2017 respectively, the Director of Immigration (‘the Director’)  rejected the applicant’s claim in respect of torture risk, risk relating to right to life under Article 2 of the Bill of Rights (‘HKBOR’), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 HKBOR, and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

IV.  The Board’s Decision

10.  The applicant then appealed to the Board.  An oral hearing was held on 3 November 2015.  By a decision dated 14 March 2018, the Board dismissed the applicant’s appeal.  The Board reasoned that the applicant’s account was vague and superficial, was contrary to common sense, and the applicant’s association of his three accidents with the basketball team members was pure speculation without evidential support.  The country of origin information also suggested that state protection and internal relocation were available to the applicant.

V.  The Judge’s Decision

11.  By the Decision, the Judge held that there was no valid ground in support of the application for leave for judicial review. There was no error of law or procedural unfairness.  The applicant was essentially challenging the Board’s finding of facts.  The applicant was also out of time as the Board’s decision was dated 14 March 2018, but the applicant only took out his Form 86 on 11 October 2018.  The Judge hence refused to grant an extension of time to the applicant to apply for judicial review and dismissed his application.

12.  By the decision dated 27 July 2022, the Judge noted the applicant’s assertion that he did not receive the Judge’s Decision ‘within 14 days’.  However, since the applicant had put forward no valid ground to challenge the Decision, it would be pointless to extend the time for the applicant to appeal.

VI.  Legal principles

13.  In considering whether to extend time to appeal, the Court will have regard to :

1)  length of the delay;

2)  reasons for the delay;

3)  prospect of the intended appeal; and

4)  prejudice to the putative respondent if an extension of time is granted.

14.  See, e.g., Re Chauhan Manish[2023] HKCA 431 [15].

VII.  Analysis

1)  Length of delay and reasons for delay

15.  As noted above, the applicant was out of time for about 3.5 months in his attempt to appeal against the Decision.

16.  In the applicant’s supporting affidavit filed on 10 August 2022, the applicant only stated that he wanted to appeal against the Judge’s Decision.  No explanation has been given for the delay.  We note that in the Court below, the applicant seemingly suggested that he did not receive the Decision ‘within 14 days’.  But no explanation was given as to when the applicant actually received the Decision, how he found out about the same, and the time taken before he applied for an extension of time to appeal. Nor did the applicant put forward any written submissions as directed by the Registrar of Civil Appeals.  We do not accept that there are any justifiable reasons for his delay.  In any event, we will also examine the merits of the applicant’s intended appeal.

2)  Prospect of the intended appeal

17.  The applicant’s summons and supporting affirmation do not disclose any valid ground of appeal.  The Judge has considered all the relevant matters, including the merits of the applicant’s case when he refused leave to apply for judicial review and dismissed his application.  We detect no error in the Judge’s analysis.

18.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

VIII.  Disposition

19.  The intended appeal is unarguable.  It would be futile to grant an extension of time to appeal in those circumstances.  Accordingly, we dismiss the Summons.

(Peter Cheung)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

Applicant, unrepresented, acting in person