Re Villanueva Reggie Cayanan and Another

HCAL 817/2018

[2021] HKCFI 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 817 OF 2018

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D E C I S I O N

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1.On 22 September 2020 I refused to grant leave to the applicants, respectively a mother who came from the Philippines to work as a foreign domestic helper and her now 5-year old daughter born in Hong Kong, to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in refusing to reinstate their validly withdrawn appeal and that it was therefore functus officio with no further jurisdiction to deal with their withdrawn appeal, upon finding none of the grounds put forward by the applicants reasonably arguable for their intended challenge, that there was no error of law or irrationality or procedural unfairness in the process before the Board or in its decision, and that there was no reasonable prospect of success in their intended judicial review application.

2.The applicants now by a summons issued on 23 November 2020 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 6 October 2020, and hence they were 7 weeks late with their intended appeal.

3.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the applicants’ case, a delay of 7 weeks must be considered as substantial, for which the 1^st Applicant explained at the hearing of the summons that she had to seek help for legal advice and assistance with their intended appeal that by the time they were ready to proceed with their appeal, they were already out of time.

5.The court record shows that the decision was sent on the same day to their last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate the bare assertion of the 1^st Applicant, I am not satisfied that the applicants have provided any good or valid reason for their delay.

6.As for the prospect of their intended appeal, the 1^st Applicant did not put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may reasonably be argued that the decision was unfair or unreasonable either in her summons or supporting affidavit.

7.However, at the hearing of the summons, the 1^st Applicant produced a skeleton submissions dated 12 April 2021 prepared by her former Duty Lawyer specifically for the 2^nd Applicant regarding her claim under the applicable grounds including BOR 2, BOR 3 and persecution risks based primarily on the 1^st Applicant’s claim of fear of being harmed or killed by her husband upon her return to the Philippines over her extra-marital affair with another man in Hong Kong which led to the birth of the 2^nd Applicant, but which are in my judgment wholly irrelevant to the issue now before me, nor would they assist or advance the applicants’ intended appeal, which is essentially one of whether it is reasonably arguable that the Board had erred in law or in facts in its findings that the applicants’ withdrawal of their appeal was valid and which therefore the Board had no further jurisdiction to deal with, and that I was wrong to refuse leave for them to apply for judicial review of the Board’s decision based on those findings: see Ali Usman [2018] HKCA 955, and Das Purnima Rani [2019] HKCA 669.

8.As such and in the absence of any error either in the decision of the Board or of mine over its refusal to reinstate their validly withdrawn appeal being clearly and properly identified by the applicants or in their skeleton submissions, I do not find any prospect of success in their intended appeal.

9.In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse their application for extension of time to appeal, and dismiss their summons.

The applicants appeared in person