Re Serasinghe Arachchige Malanie

HCAL 1356/2018

[2022] HKCFI 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1356 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Decision:  25 March 2022

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D E C I S I O N

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1.The applicant is from Sri Lanka[1]. She came to Hong Kong as a visitor on 24/3/2004. She overstayed until arrested by the police on 29/4/2013. She filed the non-refoulement claim in this case on 14/7/2013.

2.The applicant was a domestic helper for a minister in the Putlum District of  UNP[2] and a member of the Parliament in Sri Lanka. In January 2004, she was abducted by several men associated with SLFP.[3] She was interrogated about her ex-employer. She was told to stop working for her ex-employer, or else, she would be killed. Later, she was raped by two men and left in a jungle. She reported to the police who could not locate the abductors. Since then, she received threatening calls warning her against making a report to the police. Nothing eventful happened. She was scared and left Sri Lanka in March 2004. Her family informed her that the SLFP had murdered her ex-employer. They still looked for her.

3.Her claim was rejected by the Director on 6/3/2017. Her appeal was dismissed by the TCAB on 25/6/2018.

4.The adjudicator found that the evidence about the rape was sketchy. It occurred about 14 years ago. She only mentioned it in her NCF in 2016. There was no involvement of any State actor. She was not targeted by the government. She was uncertain about the time of the murder of her ex-employer. She could relocate to Kandy and Madhu. There was no real risk of harm or persecution.

5.On 11/7/2018, the applicant applied for leave for judicial review. In her affidavit, she complained that she was not given sufficient time to locate documents. She was not satisfied with the decision.

6.The conclusion of the adjudicator was justified. There was no real risk of harm. This court agreed with the findings of the adjudicator. There were reasonable relocation options. The applicant had delayed for almost 9 years before filing a claim. This court ruled that there was no error of law and procedure.  The decision of the TCAB was reasonable. This court refused leave on 29/11/2021.

7.The applicant filed a summons on 9/2/2022 for extension of time to appeal against the decision of this court.  She was nearly 2 months out of time. In her affidavit, the applicant did not specify any reason for the delay.

8.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.[4]

9.The applicant is out of time for nearly 2 months.  It is substantial delay.  She did not explain the delay. I notice that she had changed to a new address as recorded in the summons for extension of time. She had not updated the address with this court. Had this been the reason for the delay, she must bear the consequences. At this stage, the merits of the intended judicial review are also important [5].

10.As set out in paragraphs 4—6 above, I agree with the TCAB decision.  The applicant failed to establish that there was real risk of harm.  The intended judicial review was of no merit.

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

The applicant was unrepresented.