Perez Jose Bool v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2874/2018

[2023] HKCFI 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2874 OF 2018

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D E C I S I O N

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INTRODUCTION

1.This is the Applicant’s application by summons filed on 20 September 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 5 September 2022 (the “Order”) dismissing his application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).

2.Under Order 53, rule 3(4) of the Rules of the High Court, 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 was made. By 20 September 2022 when the Summons was filed, it was one day out of time. In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court 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 extension of time was granted.

DISCUSSION AND CONCLUSION

3.The delay of one day is very insubstantial which this Court was prepared to condone. As such, the reason for the delay and prejudice to the respondent carry little weight in the overall consideration. Hence, the prospect of his intended appeal becomes the determinant factor for his application for extension of time. In both his Summons and supporting affidavit, he did not advance any grounds of appeal. He merely said he failed to appeal in time and disagreed with the Court’s decision. Thus, this Court gave him direction to file a statement setting out his grounds of the proposed appeal within 14 days.

4.On 10 January 2023, he replied claiming he had life threat in his home country. The Board had refused his application for non-refoulement protection because on the basis of the case as he asserted the Board found his risk of harm was remote and he could further avoid that risk by seeking state protection or internal relocation. For reasons as explained in the Form CALL-1, after having rigorously examined the Decision with anxious scrutiny, this Court was satisfied that the Board’s Decision had not been tainted by errors of law, procedural unfairness or irrationality and hence refused his application for leave to apply for judicial review. Thus, by his intended appeal, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factor which are the sole grounds on which this Court may review the Decision of the Board; but he has not provided any grounds for challenging this Court’s decision. Thus, his intended appeal has no prospect of success.

5.Accordingly, his application for extension of time to appeal is refused.

The Applicant is not represented