Re Bunquin Lowena Rivera

CAMP 554/2021

[2022] HKCA 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 554 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1415 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Decision:  6 May 2022

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I. Renewed application for extension of time to appeal

1.On 18 July 2018, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 9 July 2018 dismissing her appeal against the decision of the Director dated 12 June 2017 rejecting her non-refoulement claim. 

2.In his decision of 11 November 2020, Deputy High Court Judge C. P. Pang (‘the Judge’)  refused to grant leave to the applicant for judicial review.

3.Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time, the applicant took out an application on 5 October 2021 before Deputy High Court Judge K W Lung requesting an extension of time to appeal.  Deputy High Court Judge K W Lung on 7 December 2021 rejected the applicant’s application.  

4.Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 9 December 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The application was within time.

5.Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.Briefly stated, the applicant is a Filipino national who had worked in Hong Kong since 1991 as a domestic helper until 2009 when she was arrested for taking up unapproved employment and sentenced to imprisonment.  In support of her non-refoulement claim, the applicant claimed that she was sexually abused on a regular basis by her younger brother from 1985 to 1989.  One night, after she got married and she was pregnant, her brother molested her again.  It was stopped by her husband.  Her husband then denied that her baby was his and started to beat her up regularly.  Both her husband and her younger brother threatened to disclose the above incidents, should the applicant return to the Philippines.  The applicant also claimed that she would be harmed or killed by her husband and her younger brother if she returned to the Philippines. 

7.She first lodged her torture claim in May 2009.  The claim was rejected by the Director on 26 August 2011. 

8.On 30 June 2016, the applicant again claimed non-refoulement on all applicable grounds other than risks of torture.

III.  The Director’s Decision

9.The Director decided against the applicant’s non-refoulement claim on 12 June 2017.  The decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life)  risk, as well as other statutory and convention rights against persecution.

IV.  The Board’s Decision

10.The applicant appealed against the Director’s decision to the Board.  An oral hearing was conducted on 30 May 2018.  The Board dismissed the applicant’s appeal on 9 July 2018, and the Director’s decision was confirmed.  In a nutshell, whilst the Board found that the applicant’s claim about the abusive incidents was plausible, it had been more than 30 years since her husband came to know of the incidents, and therefore, it would be unlikely that he would carry out his threats if she returned to the Philippines.  Further, she could relocate safely within the country, should she return.  On such bases, the Board confirmed the Director’s dismissal of the applicant’s claim based on BOR 2, BOR 3 and persecution risks.

V.  Decision of the Judge

11.In his decision dated 11 November 2020, the Judge noted that assessment of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board.  In this case, the Judge cannot identify any valid public law ground to interfere with the Board’s decision.  It was also noted that the applicant herself has stated no grounds of judicial review in her Form 86, and thus, even on her own case, the Board’s decision cannot be faulted at all.

12.In his decision dated 7 December 2021, Deputy High Court Judge K W Lung dismissed the applicant’s application to extend time to appeal because there was already a serious delay of over ten months when the application was issued.  Moreover, the applicant has not demonstrated that she has any realistic prospect of success in her intended appeal.

VI.  Legal principles

13.In considering whether to extend time for appeal, the Court will have regard to :

1)  length of the delay;

2)  reasons for the delay;

3)  prospect of the intended appeal; and

4)  prejudice to the putative respondent if extension of time was granted.

VII.  Analysis

1)  Length of delay and reasons for the delay

14.In this case, there is a serious delay of over ten months.  No explanation has been given by the applicant in her affirmation in support of her renewed application to extend time before this Court.  When the application was made to Deputy High Court Judge K W Lung, it was the applicant’s evidence that she did not receive the Court’s decision within 14 days after it was handed down.  We do not find this explanation to be credible.  Notwithstanding the above, we will focus on the merits of the appeal.

2)  Prospect of the intended appeal

15.In the applicant’s affirmation in support, the applicant stated that the Judge erred in law in holding that ‘there was no state acquiesce or involvement’.  The applicant also said that the Judge failed to provide detailed reasons in support of his decision.  In her written submissions, the applicant further complained that the Board had not acted fairly and ought to have considered matters such as Country of Origins information.

16.In our judgment, the applicant does not have any prospect of success in her intended appeal.

17.The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review. 

18.Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

VIII.  Disposition

19.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 9 December 2021.

Applicant, unrepresented, acting in person