Re Dejumo Mark Michael Rejuso

CAMP 248/2024, [2025] HKCA 1000

On Appeal From [2023] HKCFI 3204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 248 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 304 OF 2019)

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DECISION

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

1)  Leave to appeal to the Court of Final Appeal

1.On 1 February 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 304/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 30 January 2019 which confirmed the Director’s Decision of 24 April 2018.  Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 12 December 2023.

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 27 December 2023).  Being out of time for over 9 months, the applicant took out an application on 24 October 2024 requesting an extension of time to appeal (‘the extension application’).  The Judge on 12 December 2024 rejected the applicant’s application for extension of time to appeal.

3.On 31 December 2024, 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, affidavit and exhibits to affidavit (which consists of 12 pages of 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.The applicant is a Philippines national. On 20 August 2016, the applicant last arrived in Hong Kong as a visitor.  On 3 September 2016, the applicant departed for Macau and returned to Hong Kong on the same day.  The applicant’s visitor status was eventually invalidated and he had overstayed since 18 September 2016.  The applicant raised a non‑refoulement claim on 21 December 2016 alleging that if he returned to the Philippines he would be subjected to extrajudicial killing because he was a drug addict, as it was a time in the Philippines under the rule of President Rodrigo Duterte[1].

6.The background facts have been summarized in the decision of the Judge at [2] to [4].

3)  The Director’s Decision

7.The Director decided against the applicant’s non‑refoulement claim on 24 April 2018.   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[2] (‘the Director’s Decision’).

4)  The Board’s Decision

8.The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)^[3].  After a hearing held on 15 November 2018, the Board dismissed the applicant’s appeal/petition on 30 January 2019 (‘the Board’s Decision’).

9.The Board’s finding is summarized in the decision of the Judge at [7]-[8].

5)  Decisions of the Judge

10.In his decision dated 12 December 2023, the Judge held that the applicant did not put forward any proper ground for the intended judicial review challenge.  The applicant did not appear before the Judge and provided no explanation for his absence.  President Duterte had also completed his term in 2022 and was no longer President of the Philippines.  The applicant failed to show any realistic prospect of success in his intended judicial review[4].   

11.In his decision dated 12 December 2024, the Judge held that the decision was sent to the applicant by post on the day that it was made without being returned undelivered.  The Judge held that although the applicant said that upon receiving the decision he did not know what to do or how to appeal, ignorance of procedural rules cannot be an excuse for non-compliance with the rules.  Importantly, the applicant failed to put forth any proper or valid grounds of appeal.  The application for extension of time for appeal was dismissed[5]. 

6)  Legal principles

12.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

13.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal the decision of the Judge. 

14.The Form CALL-1 was dated 12 December 2023. The deadline for lodging an appeal against the Judge’s decision was 27 December 2023 (26 December 2023 was a public holiday).  The applicant was over 9 months late when he took out a summons for extension of time to appeal (24 October 2024)[6].  He stated that upon receiving the decision in the mail, he did not know what to do or how to appeal until much later when he was detained by the Immigration Department but by then he was already out of time[7].

(2)  Prospect of the intended appeal

15.In the applicant’s summons, the applicant provided no grounds of appeal.  In the applicant’s affirmation, he included 12 pages of attachment which consisted of 40 paragraphs of written submissions.  In summary, the applicant’s submissions are :

1)  He fears for his life ([4]);

2)  The applicant’s case was determined unfairly ([6]);

3)  There has been no legal or language assistance ([9], [12]);

4)  The decisions were not read back to the applicant in his native language ([10]);

5)  The applicant requests for oral hearing ([13]);

6)  The Board made a number of critical errors including failing to make specific assessment of risk, failing to make a separate consideration of the applicant’s case ([14]-[21]);

7)  The applicant has economic difficulty if refouled ([23]);

8)  The Board refused the applicant’s case simply due to the applicant’s failure to remember dates and time ([25]-[30]);

9)  The Board did not consider country of origin information ([31]);

10)  The Judge did not give the applicant a chance to explain ([35]); and

11)  The Judge’s decision did not meet standard of fairness and was Wednesbury unreasonable ([38]-[39]).

16.For 1-2, 6-9, and 11, they are broad and vague assertions without particulars or specifics nor evidence in support of such assertions.

17.For 3, it is factually incorrect as the applicant was legally represented at the Director’s stage[8] and before the Board he had interpreter services[9].  It must be understood that as was held in Re Zunariyah [2018] HKCA 14 that the high standard of fairness does not prescribe that a claimant has an absolute right to free legal representation at all stages of the proceedings.  Also, it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required: Re Gurnishan Singh [2018] HKCA 704 at [13].

18.For 4, there is no duty on the Court to read back decisions to the applicant.  Also, the applicant never made this complaint before the Board.

19.For 5, the applicant was given an oral hearing before the Board, and an oral hearing before the Judge on 21 November 2023 which the applicant failed to attend, and an oral hearing on 28 November 2024 for the application to the Judge for extension of time to appeal.

20.For 10, it is factually incorrect or misleading to say that the Judge gave the applicant no chance to explain.  The applicant was absent before the Judge: see Judge’s decision at [9].

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

22.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

23.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 31 December 2024.