RE MATIBAG RONNEL PAET

CAMP 244/2023, [2025] HKCA 1117

On intended appeal from [2023] HKCFI 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 244 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 634 of 2019)

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JUDGMENT

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Hon Chu VP giving the Judgment of the Court:

1.  On 15 August 2025, this Court handed down our judgment ([2025] HKCA 745) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 13 January 2023 which refused to give him leave to apply for judicial review.

2.  On 21 August 2025, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  He has also put in a written submission to support the application.

3.  Having considered the applicant’s Notice of Motion and written submission, 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 has been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 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.

6.  The Notice of Motion stated the applicant “would like to reject and review the decision made by the court” and that his dangerous situation has been disregarded.     

7.  In his written submission, the applicant made the following points:

(1)     As a foreigner, he does not have any understanding of the judicial system and in many cases court letters have not been sent to applicants successfully leading to significant delay.  The Court should therefore understand that these things are possible. 

(2)     The Court should not reject his application for time extension simply because his case has little chance of success.  The Court should grant any applicant the right of access to all available resources and opportunities without fear or favour.  The evaluation of the chance of success is arbitrary and based on assumption.  If he has a chance of an oral hearing he may have a chance of success.

(3)     The problem with the Torture Claims Appeal Board (“the Board”) is that does not have properly understand the local context as its knowledge is only from the COI and other general reports which are inadequate.  The Board’s assessment is erroneous and its procedure is problematic.

(4)     The Court cited Re Kham Kamal Ahe [2019] 377 in saying that there has to be merits for an extension of time to be given.  However, this is a violation of his right to appeal. Also whether there are merits depend on the circumstantial evidence and can be subjective.  Objectively, he did not receive any of the letters due to no fault of his.  Yet he was punished and denied a time extension for something beyond his control.

8.  The matters set out in the Notice of Motion and written submission do not afford any basis for granting leave to appeal.   Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. 

9.  Further, the matters raised are unarguable. 

10.  First, while the applicant has a right to appeal against the refusal of leave to apply for judicial review, he is required by the law to lodge the appeal within 14 days from the refusal of leave: see Order 53 rule 394) of the Rules of the High Court, Cap. 4A.  It is because the applicant did not file a notice of appeal within the time prescribed by law that he needs a time extension.  The Court has a discretion over whether to grant the time extension, and the applicable legal principles, which are long established, have been set out in [12] of our judgment.  Apart from the length of and the reasons for the delay, the Court must also take into account the merits of the intended because it is futile and a waste of time and judicial resources to extend the time for appeal when the intended appeal has no prospect of success.  The applicant’s complaint that he has been denied his right of appeal or access to court is untenable. 

11.  Second, it is evident from our judgment that we refused the applicant’s renewed application primarily because he has failed to show his intended appeal has any prospect of success: see [15] to [17] of our judgment.

12.  Third, the applicant’s complaint about the Board’s assessment and use of COI is a new ground which was neither raised in the Court of First Instance in his application for leave to apply for judicial review and application for time extension, nor before the Court of Appeal in his renewed application for time extension.  It is not permissible for the applicant to rely on new grounds in the present application, especially when the new ground is fact-sensitive.  His complaint is in any event vague and devoid of particulars or supporting evidence.    

13.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

14.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.

CAMP 244/2023, [2025] HKCA 745

On appeal from [2023] HKCFI 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 244 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 634 OF 2019)

____________________

____________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 13 January 2023 ([2023] HKCFI 129) dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affidavit. Despite directions given by the Court, he has not provided any written submission to support his application.   

3.  Under Order 59 rule 14A (1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of the Philippines now aged 35.  On 2 August 2008, he came to Hong Kong as a visitor.  He overstayed and was arrested by the police on 26 March 2009.  He later made a torture claim.  Due to his failure to file the required questionnaire within the given time limit, the Director of Immigration (“the Director”) treated his claim as withdrawn on 27 November 2013.  

5.  On 27 December 2013, the applicant lodged a non-refoulement claim.  The basis of his claim was set out in detail in [7] of the Director’s decision and summarised by the Judge in [2] to [4] of the Form CALL-1.  In gist, the applicant claims he witnessed a person named Arnold committing a murder in 2007 and he fears Arnold will harm or kill him.   

6.  By a decision dated 10 May 2018, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], persecution risk[2] and BOR 2 risk^[3] grounds.  There was no assessment under the torture risk[4] ground in light of the previous dismissal of the torture claim.  The Director’s reasons were summarised by the Judge in [6] of the Form CALL-1. 

7.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board.  An oral hearings were held on 22 October 2018 during which the applicant gave evidence and answered questions from the Board. 

8.  By its decision given on 22 February 2019, the Board dismissed the appeal on the ground that the applicant failed to establish his entitlement to no-refoulement protection under either of the applicable grounds.  The Board found the applicant’s evidence inconsistent and unconvincing and doubted the credibility of his claimed fear and reasons for leaving his country.  The Board also found state protection and internal relocation options reasonably available to the applicant.  The Board’s decision and reasons were summarised by the Judge in [8] of the Form CALL-1.    

9.  On 6 March 2019, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the Board’s decision. Other than stating in his affidavit that his dangerous situation had been disregarded, the applicant did not provide any ground for seeking relief.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper.  By the Form CALL-1 dated 13 January 2023, the Judge refused to give leave to the applicant to apply for judicial review, holding that the intended judicial review has no prospect of success.  In brief, the Judge noted that the applicant had not put forward any grounds for seeking relief.  The Judge also found no error of law or procedural unfairness in the decisions of the Director and the Board, or failure to adhere to the high standards of fairness in the process before the Director and the Board and their consideration and assessment of the applicant’s claim. 

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 27 January 2023.

11.  By a summons filed on 3 April 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing held on 8 June 2023, and by his decision handed down on 8 June 2023 ([2023] HKCFI 1577) refused the application. 

12.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

13.  The applicant was late by about nine weeks, which is a significant delay.  In the Court below, the applicant explained that he did not receive the Judge’s decision and he was only informed of it by the Immigration Department.  The Judge did not consider this a satisfactory explanation since the Form CALL-1 and the court order were sent to the address provided by the applicant and had not been returned by the Post Office.  We see no reason to differ from the Judge’s view.

14.  We turn next to consider the merits of the intended appeal, which is the most important consideration.  We would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

15.  The applicant has not provided any ground to support his intended appeal.  He merely stated in his affirmation accompanying the present summons that his dangerous situation has been disregarded. 

16.  We are of the view that the applicant’s intended appeal has no prospect of success.  First, as the Judge correctly pointed out, the applicant has not provided any grounds for seeking relief in his Form 86 or the accompanying affidavit.  He has simply failed to show that his intended judicial review has any prospect of success.  

17.  Further and importantly, the applicant has not pointed to any error in the Judge’s reasoning and decision.  On the legal principles set out above, the intended appeal is unarguable.

18.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 5 July 2023.