Gardiola Jeane Lagac v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 952/2017

[2019] HKCFI 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 952 OF 2017

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D E C I S I O N

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Introduction

1.This is an application dated 30 January 2019 for extension of time to appeal from my decision of 4 December 2018, refusing leave to extend time to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  That deadline was clearly outlined within the Notes to Applicant on the Call-1.  She did not do so.  She now requires leave to extend time to appeal against that order.  The applicant attended court in person.

Procedural background

2.The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  She entered Hong Kong legally on 18 January 2007 to work as a Foreign Domestic Helper (“FDH”) and overstayed when her FDH contract was terminated.  She submitted a non-refoulement claim by way of written representation on 19 June 2015.  As a result, on 2 October 2015, the applicant received a Notice to Persons Making a Non-refoulement Claim and was provided with a blank Non-refoulement Claim Form (“NCF”).  The applicant had the benefit of a Tagalog interpreter at which time the onerous conditions of the process were explained to her.  This included being told that she had 28 days in which to submit the NCF.  She was thereafter represented by the Duty Lawyer Service (“DLS”).  The date for the submission of the NCF was 20 November 2015.  This was reiterated to the DLS by way of letters dated 23 October 2015 and 13 November 2015.  On 19 November 2015, the DLS informed the Director of Immigration (“the Director”) that they had received no instructions from the applicant.  The Director attempted to contact her on the same day using the contact number the applicant had given but the applicant could not be reached.  As a result, the NCF, not having been submitted by 20 November, was deemed withdrawn and the applicant was notified of that withdrawal by letter dated 24 November 2015.  Included in that letter were instructions as to what was required in order to re-open the claim.

3.On 25 January 2016, DLS wrote to the Director on her behalf seeking to re-open the claim.  The reasons for the original non submission of the NCF were given at that time.  They included lack of funds to attend the first interview with the DLS and being unwell so that she could not attend the second interview.  This submission was considered on the papers.  There was no medical evidence in support.  The applicant’s request to re‑open her claim was denied on 27 January 2016.  The applicant had not been able to show that her failure to submit the NCF on time was due to circumstances beyond her control.  The applicant was informed that she had 14 days to appeal that decision.

4.On 11 February 2016, the applicant lodged a Notice of Appeal with the Torture Claims Appeal Board (“TCAB”) within time.  Her appeal was considered on the papers by the Adjudicator, Mr Wesley Wong, who refused it on 12 May 2017, giving reasons.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 November 2017, which was out of time.  She did not request an oral hearing.  The issue of extension of time to apply for judicial review of the decisions of both the Director and the Adjudicator, was therefore considered as a preliminary point on the papers prior to any consideration of her application for leave to apply for judicial review of the Decisions of both the Director and Adjudicator denying her the opportunity to re-open her claim.  Her application for leave to extend time to apply for judicial review was refused on 4 December 2018.  She had 14 days from that date to appeal that decision which would have expired on 18 December 2018.  By way of summons dated 30 January 2019, she now seeks leave to appeal out of time.

5.An applicant who wishes to appeal against a CFI judge’s refusal to extend time for leave to apply for judicial review, which is an interlocutory order has to observe the time limits for appeal under Order 59, rule 2B which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to extend time to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 15.

6.In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for her delay.  In her two letters in support of her summons dated 30 January 2019, the applicant claims she did not receive the Order on time and that she found out about the Order when she attended at Shatin Magistrates’ Court on 2 January 2019 on a charge of overstaying.  She says she received a copy of the Order on 7 January 2019, when she came to the High Court to obtain one, but still did not manage to issue a summons until 30 January 2019.  The applicant maintains that she could not do so until that date because she required a loan from a friend to pay the court fee of $1,045 and had to wait until the end of the month to receive the money.  In addition, the applicant asks the court to consider her baby son who was born out of wedlock and about whom her family do not know.  She maintains that he is two years of age and his father is an Indian national, who is also a Form 8 holder.

7.In respect of the previous out of time applications, the applicant states that she was incarcerated in Tai Lam Centre for Women on 21 July 2016 for an offence of theft and that there was some confusion about her being able to obtain a Form 86.  However, I note that she did not submit her Form 86 until 24 November 2017, by which time she was out of prison and resident at Room A, 2^nd Floor, No 165 Queen’s Road, Sai Ying Pun and must have notified the court of a subsequent address as the Call-1 and Order were sent to Flat A, 5/F, No 1 Third Street, Sai Ying Pun.  This is an address at which she currently receives mail and has successfully received mail for these proceedings.  There can therefore be no excuse for her not receiving the Call-1 and Order on time.

Conclusion

8.The applicant has now been in Hong Kong since 2007. She has been interacting with various government agencies for the entirety of that period and accepts she received all necessary documents and notifications. She has been receiving mail at the Third Street address for these proceedings and lived at that address when the Call-1 and Order were issued.  The explanation she has offered to this court, as to why she did not receive the Order of this court, is not acceptable.

9.In any event, I have considered her underlying application to ensure that there are no matters, which should have been raised and which, because of her tardiness, she has not been able to address.  In essence, she came here as an FDH, over stayed, had no job, started an extra-marital affair with her current partner and had a child of that union.  She does not want to return to the Philippines because her husband has found out about her affair and has threatened her.  That set of facts has no merit in any event.  There is no complaint before the court as to the decision of the TCAB or the decision of this court to refuse extension of time.  The applicant merely wishes the Court of Appeal to re-consider her current situation because she has not informed her family about her son.  Having considered the length of delay, reasons for the delay and underlying merits of her application as well as the background to all of the proceedings, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.The applicant’s summons dated 30 January 2019 be dismissed.

The applicant appeared in person.