Re Dimaculangan John Abobo

CAMP 67/2025, [2025] HKCA 702

On Appeal From [2025] HKCFI 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 67 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2235 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.On 7 April 2025, the applicant took out a summons to reapply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 21 January 2025 ([2025] HKCFI 147)(“the Leave Decision”)  refusing his application for leave to apply for judicial review.  On 27 March 2025, the Judge refused to grant to the applicant an extension of time to appeal against the Leave Decision ([2025] HKCFI 961)(“the EOT Decision”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 24 July 2019 (“the Board’s Decision”)  confirming the decision of the Director of Immigration (“the Director”)  dated 18 May 2018(“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

BACKGROUND

4.The applicant is a national of the Philippines.  He entered Hong Kong on 2 June 2017 as a visitor and was allowed to stay until 16 June 2017.  He overstayed and surrendered to the Immigration Department on 27 June 2017.  By written representations respectively dated 28 August 2017 and 13 September 2017, he lodged a non-refoulement claim on the basis that he would be harmed or killed by drug users and drug peddlers upon refoulement.  Details of the applicant’s claim were summarised by the Judge at [4] - [6] of the Leave Decision.

5.By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.The applicant subsequently appealed against the Director’s Decision to the Board.  The applicant, being legally represented, appeared and gave evidence before the Board on 15 May 2019 and a Tagalog interpreter was also present to provide language assistance during the oral hearing.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [9] - [11] of the Leave Decision:

“9. The applicant appealed the Director’s Decision to the Board. On 15 May 2019, the Board conducted an oral hearing. The applicant was represented by a duty lawyer and the Director was represented by a government counsel.

10. Having considered the evidence, the Board dismissed his appeal for the reasons that the applicant’s evidence was inconsistent and unreliable and his story of compiling a list of drug abusers and drug peddlers and the phone threat were rejected, which the Board found to be fabrication for his claim.

11.  For the reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.”

THE JUDGE’S DECISION

7.On 6 August 2019, the applicant filed a Form 86 together with a supporting affidavit to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in his Form 86.  In his supporting affidavit, he merely stated that the Board disregarded his dangerous situation in his home country.  As the applicant did not request for an oral hearing, the Judge considered and determined his application on paper.

8.By the Leave Decision, the Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were stated at [14] - [20] of the Leave Decision:

“14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

17.  Both parties were legally represented before the Board. The Board was legally assisted to make a fair decision on the appeal. The Board’s Decision contains a record of the proceedings, which is comprehensive, with anxious examination and rigorous examination of the facts of the claim.

18.  The applicant has not raised any valid reasons to challenge the Board’s Decision.

19.  The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

9.Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.On 25 February 2025, the applicant applied by summons together with an affirmation for an extension of time to appeal against the Leave Decision.  By that time, he was three weeks late with his intended appeal.  No proposed ground of appeal was advanced in his summons.  In his supporting affirmation, he only alleged that he did not receive the Leave Decision and that if refouled, he would be killed by his enemies.

11.By the EOT Decision, the Judge held that there was no valid reason from the applicant to challenge the Board’s Decision and the Leave Decision.  Accordingly, the Judge dismissed his application for extension of time to appeal against the Leave Decision.

THIS APPLICATION

12.By a summons and a supporting affirmation together filed on 7 April 2025 in the Court of Appeal, the applicant reapplied for extension of time to appeal against the Leave Decision and the EOT Decision.  In his summons, the applicant claimed that he disagreed with the court’s decisions as the Judge did not consider his summons for extension of time properly.  His problem back in his home country persists and his enemies are still looking for him.

13.Pursuant to the directions of the Registrar of Civil Appeals dated 7 April 2025, the applicant lodged his written submissions on 22 April 2025.  In those submissions, he reiterated that his life would be in severe danger and he would be killed by his enemies upon refoulement.  He further asserted that the Judge had been unreasonable and failed to apply the principle of procedural fairness to the decisions of the Director and the Board.  He also claimed that the Judge failed to analyse his claims properly and the Board failed to give him sufficient chances to arrange relevant evidence to support his non-refoulement claim.  He further asserted that the Board had been irrational in its failure to analyse whether state protection existed in his home country.

DISCUSSION

14.Although the applicant sought to appeal also against the EOT Decision, in substance we will treat this to be an application to appeal out of time the Leave Decision.  See: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8].

15.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

17.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

18.Further, the assessment of evidence, Country of Origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

19.The applicant’s delay of three weeks was very significant.  He failed to give any reason, let alone good reason, for his serious delay.  He also provided no evidence to support his assertion that he failed to receive the court’s letters and decisions.  As noted by the Judge at [4] of the EOT Decision, the Leave Decision and the sealed court order was sent on 21 January 2025 to the applicant’s last known address at the material time and was not returned undelivered.  Plainly there is no substance in his assertions.

20.In any event, in our view, the present application is devoid of merit.  His allegations are all vague, bare and general in nature.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicant was also legally represented before the Board and had ample opportunities to submit evidence and his case to the Board.  As the Judge properly observed at [17] of the Leave Decision, the Board’s Decision was comprehensive and with anxious and rigorous examination of the facts of the applicant’s non-refoulement claim.  The applicant has not pointed any error in the Judge’s said observation.

21.In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the Leave Decision.  The Judge had considered the facts of his case in detail and we agree with the Judge’s observations.  There is plainly no basis to disturb the Leave Decision.

22.Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.The reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 7 April 2025 is dismissed.

The applicant acting in person