MECATE FARIDA REONDRES

CAMP 27/2022

[2022] HKCA 1279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 27 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 788 OF 2019)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment: 1 September 2022

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  By a summons filed on 20 January 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 5 November 2021 refusing her application for leave to apply for judicial review ([2021] HKCFI 3275) (“Leave Decision”). By a subsequent judgment dated 23 December 2021, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision ([2021] HKCFI 3746) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 14 March 2019 (“the Board’s Decision”), and the decision of the Director of Immigration (“the Director”) dated 15 March 2018 rejecting her claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of the Philippines.  She previously worked as a foreign domestic helper and was granted permission to stay till 1 February 2009.  However, her contract was prematurely terminated on 16 January 2009 and she was only allowed to stay till 30 January 2009.  She did not leave and had overstayed since 31 January 2009.  On 20 March 2017, she raised a non-refoulement claim on the basis that she would be harmed or killed by a loan shark.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 15 March 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  On 27 March 2018, the applicant appealed against the Director’s Decision to the Board.  On 30 November 2018, she attended an oral hearing before the Board and a Tagalog interpreter was also present to provide language assistance.  On 14 March 2019, the Board dismissed her appeal.  On the evidence, the Board did not accept that the applicant was an actual signatory or party to a loan with the alleged loan shark or anyone else in the Philippines.  The Board also did not accept that anyone had made threats to harm or kill the applicant.  Having assessed the evidence, the Board considered that the applicant failed to substantiate her claim on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 21 March 2019, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  However, she did not put forward any ground in support of her application.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [12] ‑ [18] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14. In Re Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. The applicant has not raised any valid challenge against the Board’s Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 9 December 2021, the applicant filed a summons (“EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was 20 days late with her intended appeal.  In her summons and supporting affidavit, she alleged that she was late in taking out her application as the Leave Decision was sent to an old address and she only received the same on 8 December 2021.

11.  By the EOT Decision, the Deputy Judge considered that the applicant’s reasons for delay was unconvincing.  The Deputy Judge further considered that the applicant did not have any realistic prospect of success in her intended appeal and refused to extend time for her intended appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 20 January 2022, the applicant reapplied for extension of time to appeal against the Leave Decision. In the summons, she only stated that she wanted to challenge the Leave Decision but failed to provide any ground in support.  She also claimed in her supporting affirmation that she did not have a mail box as the building was under renovation, that was she was late in making her application and it would not happen again.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 20 January 2022, the applicant did not file any written submissions in support of her present reapplication.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  The applicant’s delay of 20 days was not insubstantial. She also failed to provide evidence in support of her allegation that the building was under renovation and she did not have a mail box.  In any event, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].  Accordingly, given the applicant’s failure to provide good reasons for her delay, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

16.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  Nowhere in the summons or supporting affirmation for the present application did the applicant identify any error in the Leave Decision with specific particulars.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

18.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 20 January 2022 is dismissed.

The applicant acting in person