Re Macaganda Eleanor Balbag and Another

HCAL 2961/2018

[2022] HKCFI 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2961 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 1^st applicant is from the Philippines.[1] She came to Hong Kong on 4/12/2012 as a foreign domestic helper for 2 years. Her contract was terminated on 19/11/2014. She overstayed and was arrested on 13/6/2015. She filed the non-refoulement claim in this case on 13/7/2015.

2.She gave birth to the 2^nd applicant in Hong Kong on 10/5/2016. She applied on behalf of the 2^nd applicant for non-refoulement claim on 10/2/2017.

3.Her marital relationship had been deteriorating since 2002. There were frequent incidents of domestic violence. She tolerated until 2008 when she left the Philippines to work in Singapore.In 2011, she returned to the Philippines. She and her children lived at her mother’s house. Her husband kept on harassing her. She applied to work in Hong Kong to stay away from him. After she was terminated in 2014, she could not find a new contract. She overstayed in Hong Kong. She had a relationship with an Indian in Hong Kong. The 2^nd applicant was their son.Her husband was furious on knowing her relationship with another man. He threatened to kill her.

4.Their claim was rejected by the Director on 31/1/2018. Their appeal was dismissed by the TCAB on 7/12/2018.

5.The adjudicator found that the 1^st applicant was not seriously injured despite the domestic violence. She did not report the assaults to the police. She had lived apart from her husband for about 10 years. It was unlikely that her husband expected her to return to the matrimonial home. There was no injury to both applicants. The risk of ill-treatment was low. The 1^st applicant should be able to divorce her husband. There was no threat within Convention categories. There was no real risk to their life. There was no torture defined under the Immigration Ordinance. The 1^st applicant wanted to go back to the Philippines with the 2^nd applicant. She was not sure if she could find a job. The adjudicator found that there were government organizations and NGO which offered assistance to women and children. There were reasonable relocation alternatives.

6.On 24/12/2018, the applicants applied for leave for judicial review. The 1^st applicant did not specify any error in the TCAB decision in her affidavit.

7.The adjudicator had analyzed the evidence carefully. There was no ill-treatment amounting to a minimum level of severity to both applicants. There was no separate issue in relation to the 2^nd applicant’s claim. The claim of both applicants would stand or fall together. This court agreed with the findings of the adjudicator. This court ruled that there was no error of law and procedure.  The decision of the TCAB was reasonable. This court refused leave on 4/12/2020.

8.The 1^st applicant filed a summons on 2/2/2021 for extension of time to appeal against the decision of this court.  She was more than 6 weeks out of time. In her affidavit, the applicant asserted that she did not receive the decision from this court.

9.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.[2]

10.The applicant is out of time for more than 6 weeks.  It is substantial delay.  The decision of this court was sent to her last known address in the Form 86 dated 24/12/2018. There was no return of mail.

11.The last known address is different from her address in the summons for extension of time. Had this been the reason for failure in the mail, she must bear the consequences as she had not update her address.

12.However, the important issue at this stage is the merits of the intended judicial review [3].

13.As set out in paragraphs 5 above, I agree with the TCAB decision.  The applicants failed to establish that there was real risk of harm.  The intended judicial review was of no merit.

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

The 1^st and 2^nd applicants were unrepresented.