Rodriguez Carreno Samuel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1741/2024

[2025] HKCFI 768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1741 OF 2024

________________________

BETWEEN

________________________

________________________

DECISION

________________________

Introduction

1.This is the Applicant’s applications by summons filed on 13 February 2025 (the “Summons”)  seeking extension of time to appeal the order of this Court dated 28 January 2025 (the “Order”)  refusing his application for leave to apply for judicial review (the “leave application”).  

2.By way of background, the Applicant arrived at Hong Kong on 16 September 2006 with a load of cocaine in his intestine.  He was refused entry and arrested for trafficking in dangerous drugs.  He was convicted of the offence and sentenced to 10 years’ imprisonment.  Shortly before completing his term of imprisonment, he applied for non-refoulement protection.  After he was discharged from prison, he was transferred to immigration detention and then released under recognisance.  While his non-refoulement claim was being processed, he committed another trafficking offence and was sentenced to 12 years’ imprisonment on 23 August 2018.  In the meantime, his non-refoulement claim was rejected by the Director of Immigration (the “Director”)  and his appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).  Again, towards the end of his 12 years’ term, he made the leave application.  By then, it is almost four months out of time. At the hearing, this Court explored his explanation for the delay with him.  As he failed to satisfy the Court that he has a reasonable explanation for the delay, the Court refused to grant him leave to file the leave application out of time in accordance with the principle in Po Fun Chan v Winnie Cheung[1].  In view of the seriousness of the consequence of the Decision, the Court also considered merits of his leave application, but in the end found there was none.  He now seeks leave to appeal this Order out of time.

Legal principles applicable to application for extension of time to appeal

3.Under Order 53, rule 3(4)  of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 28 January 2025 when the Summons was filed, his application was two days out of time.  Though the delay is short, leave to appeal out of time is nevertheless required. 

4.In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[2], 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 the 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.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

5.The application is only two days late.  The Court understands that as the Applicant is in custody, it may take more time for mails to be checked by the detention institution and delivered to him and he may take more time to arrange filing of the summons.  Hence, the Court is prepared to assume he has a reasonable explanation for the delay and grant him leave if he could provide an arguable ground of appeal with some prospect of success.  His ground of appeal as asserted in his supporting affirmation is that the Court refused his leave application because of (1)  discrimination as he has a criminal record; and (2)  because it did not believe he is suffering from cancer.  The rest of his affirmation is a reiteration of his claim that he could not return to his home country because his life will be in danger there.

Discussion and conclusion

6.Insofar as his criminal record or conviction is concerned, it is not a fact considered in the Court’s primary basis for rejecting his explanation for the delay or in finding that there are no merits in his intended leave application.  The High Court’s judgments relating to his and his co-defendant’s convictions were only referred to by the Board, not this Court, for the purpose of rebutting his allegation that he had offered assistance to the authorities leading to the conviction of the person whom he alleged was persecuting him and from whom his danger arose.  This Court did no more than referring to the evidence and the Board’s decision.  There is nothing to suggest the Court’s decision is the product of discrimination.  Thus, his criminal record is a non-issue.

7.As for his complaint that the Court did not believe he is suffering from cancer, there is nothing in the Form CALL-1 which suggests that was what this Court chose not to believe.  What this Court found was that he had not produced any evidence to support his claim that he was suffering from lung cancer and other medical conditions, not even his hospital appointment card to support his claim that he was receiving regular treatment. However, the Court went further to assume that he was in fact suffering from cancer and various other diseases, but for reasons as explained in paragraph 9 of the Form CALL-1, the Court was not satisfied that his conditions were so feeble as to make it impossible for him to complete the Form 86.   Thus, whether he was suffering from cancer is a non-issue.

8.His assertion that his life will be in danger if returned to his home country is obviously not an explanation for the delay and not an arguable ground of appeal.

9.The issues raised by his grounds of intended appeal are non-issues which have no bearing on the Court’s decision rejecting his explanation for the delay.  He has not identified what was otherwise wrong with the Court’s decision.  Despite the Court’s readiness to indulge and the shortness of his delay, he has not offered any arguable grounds of appeal with prospect of success.  Hence, his application for extension of time to appeal is refused. 

The applicant is not represented