Re Characo Characo Genesis Haidee

HCAL 2922/2018

[2021] HKCFI 2623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2922 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Decision:  9 September 2021

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D E C I S I O N

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1.The applicant is from Venezuela. She came to Hong Kong on 22/2/2018 en route Colombia, Cambodia and China. She claimed that she was invited by a church for a sharing. She was allowed to stay until 23/5/2018. She surrendered to the Immigration Department on 28/5/2018 for overstaying. She filed the non-refoulement claim in this case on 4/6/2018.

2.The claim was dismissed by the Director on 28/8/2018.  Her appeal to the TCAB was dismissed on 11/12/2018.

3.The applicant cohabited with her boyfriend since 2008.  They broke up around July 2017.  Around January 2018, the cousin of her boyfriend came to her house.  He alleged that her boyfriend owed him USD$20,000 but there was no IOU.  He threatened to kill her if she did not repay the debt for her boyfriend.  She moved to her parents’ house.  She decided to leave Venezuela for her safety.  She was not aware of the non-refoulement protection scheme.  She just came to Hong Kong as a tourist.

4.The Director pointed out that she had delayed for 3 months before applying for protection.  She misrepresented to the Immigration Officer that she came for a sharing in a church.  There was no ill-treatment of ‘a minimum level of severity’.  There was no torture.  The Director rejected her claim.

5.The adjudicator pointed out that the applicant had sustained no physical or mental suffering.  There was no torture.  She knew very little about the cousin.  She was unable to explain her liability due to her boyfriend’s debt.  The cousin should be fully aware that she had no means to repay.  Her children and parents were safe in Venezuela.  The TCAB rejected her appeal as there was no real risk of harm.  There was no persecution. 

6.On 19/12/2018, the applicant applied for leave for judicial review of the TCAB decision.  In her affirmation, she alleged that the TCAB was unfair.  However, there was no detail about the unfairness.

7.This court found no error of law or procedure in the TCAB decision.  It was rational.  The evidence only supported a private dispute of debt.  There was no ground warranting protection.  There was no reasonable prospect of success in the intended judicial review.  This court refused leave on 25/3/2021.

8.The applicant filed a summons on 29/4/2021 for extension of time to appeal.  She was about 3 weeks out of time.

9.In her affirmation, the applicant asserted that she had changed her address.  She had not informed the court.

10.In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[1]

11.The decision was sent to her previous address on 25/3/2021.  There was no return of mail.  She had not given any detail how she obtained the decision of this court from her previous address.  In any event, she had a duty to update her address.  She must bear the consequence of any delay in the mail.

12.I am doubtful about her late receipt of the decision.  However, the important issue is the merits of the intended judicial review [2] at this stage.

13.The applicant’s evidence did not support a real risk of harm.  The dispute allegedly arose from a debt which she should not be liable.  I agree with the decision of the adjudicator.  The intended judicial review was of no merit.

14.In the circumstances, I refuse the application for extension of time to appeal.

The applicant was unrepresented.