Re Lang Ay Ernesto Jr Cabanas

CAMP 114/2023, [2024] HKCA 63

On Appeal From [2022] HKCFI 3615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 114 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 744 OF 2022)

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DECISION

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

1) Renewed application for extension of time to appeal

1.On 10 August 2022, the applicant issued his application for leave for judicial review by Form 86 in HCAL 744/2022 out of time. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 22 August 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 31 January 2019 rejecting his non-refoulement claim. Deputy High Court Judge KW Lung refused to grant extension of time for leave for judicial review on 1 December 2022.

2.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 15 December 2022). Being out of time for about six days, the applicant took out an application on 21 December 2022 before the Judge requesting an extension of time to appeal. The Judge on 30 January 2023 rejected the applicant’s application for extension of time to appeal.

3.On 22 March 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation, and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

5.Briefly stated, the applicant is a Philippines national. The applicant entered Hong Kong in May 2018 as a visitor and overstayed. He raised his non-refoulement claim on 16 August 2018 alleging that he would be harmed or killed by the family members of a person who was murdered because they thought that the applicant was involved in the crime.

3) The Director’s Decision

6.The Director decided against the applicant’s non-refoulement claim on 31 January 2019. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 30 April 2019. The Board dismissed the applicant’s appeal on 22 August 2019 and the Director’s Decision was confirmed. It held that the applicant did not make the non-refoulement protection at the first available opportunity on arrival in Hong Kong and this was behaviour detrimental to his credibility. The Board held that the applicant accepted that his alleged situation was a personal matter. It held that there was no reliable evidence to show (and it did not accept) the victim’s family members posed any threat to the applicant or that the applicant was being personally targeted by the victim’s family members or that he had suffered any physical or mental suffering or of the requisite severity. It held that the victim’s family members were non-state actors. The applicant has no personal risk from officials. Internal relocation was possible.

5) Decisions of the Judge

8.In his decision dated 1 December 2022, the Judge held that the applicant had showed no valid reason to challenge the Board’s decision. There was no error of law or procedural unfairness.

9.In his decision dated 30 January 2023, the Judge held that there was no valid reason to show that there was a prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

10.In considering whether to extend time for 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 extension of time was granted.

7) Analysis

(1) Length of delay and reasons for the delay

11.Under Order 53, rule 4 of the Rules of High Court, the applicant had three months to take out a judicial review application before the High Court from the handing down of the decision of the Board.

12.The Board’s decision was dated 22 August 2019. The month August was Court vacation. Time began to run from 1 September 2019. Three months from 1 September 2019 was then 1 December 2019 being the deadline for the applicant to take out a judicial review application. The applicant took out his Form 86 judicial review application on 11 August 2022. The applicant was over two years and 7 months late which was very substantial. The applicant gave no explanation for his lateness. The Judge further considered the merit of the applicant’s case and held that the applicant provided no valid reason to challenge the Board’s decision.

(2) Prospect of the intended appeal

13.In the applicant’s summons and affirmation, he stated that he did not receive the decision on time and he was recently released from detention. In his written submission, he stated :

‘ 5. My problem in my country is genuine and my wife and children also remain in HongKong, it is true that my claim and my wife and children case is differently assessed and still waiting for the decision, but we all face risk upon refoulement.

6. Failing to take into account relevant considerations/taking into account irrelevant Consideration.

When assessing a non refoulment claim the Decision makers must pay due regard the applicable rules of law, have regard to all relevant matters and not to have regard to irrelevant matters.

It is submitted that the TCAB and the Director failed to take into account and / or give proper weight to relevant considerations and materials which he should have, and hence his decision is illegal. Specially, both failed to give due regard to :’

14.In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time for leave for judicial review or the renewed application for extension of time to appeal.

16.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.

8) Disposition

17.As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 22 March 2023.

Applicant, unrepresented, acting in person