Ubongen Leanne Palma and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 300/2019 and HCAL 818/2022

(Heard together)

[2023] HKCFI 3133

HCAL 300/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 300 OF 2019

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AND

HCAL 818/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 818 OF 2022

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D E C I S I O N

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Introduction

1.These are the Applicants’ applications by summons filed on 20 October 2023 (the “Summonses”) seeking extension of time to appeal the orders of this Court dated 29 September 2023 (the “Order”) refusing their applications for leave to apply for judicial review (the “leave applications”). In HCAL 300/2019, the applicants are the mother (the “Mother”) and her son (the “Son”). In HCAL 818/2022, the applicant is the daughter (the “Daughter”) represented by the Mother. For the purpose of the present applications, the Applicants’ cases and issues raised by their applications are the same. They are individually and collectively referred to as the “Applicants”.

Legal principles applicable to application for extension of time to appeal

2.Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 20 October 2023 when the Summonses were filed, their applications were seven days out of time. Leave to appeal out of time is required.

3.In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Length of delay and reasons for the delay

4.The applications are only seven days late. Indulgence may be readily given if there is a reasonable explanation for the delay and the intended appeal has good prospect of success. In the Summonses and supporting affirmations filed with the Summonses, the Applicants said:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.

For not being able to raise enough money to apply an appeal with the time limit. I also did not realize I should apply an appeal within 14 days.”

5.As the Court did not consider the statements contain adequate explanation for the delay and sufficient particulars of the grounds of intended appeal, the Applicants were given specific directions to file an affirmation or statement setting out their explanations for the late application and the grounds of the intended appeals. In response, the Applicants filed an affirmation in HCAL 300/2019 asserting:

“I would like to file the extension of time because I would like to reject and review the decision. My two children, 7 and 3 years old respectively, will face grave danger should they be returned to Philippines. I am still currently married as Philippines do not allow divorce. My children would be killed.”

And an affirmation in HCAL 818/2022 asserting:

“I would like to file the extension of time because I would like to reject and review the decision. My two children, 7 and 3 years old respectively, will face grave danger should they be returned to Philippines. I am still currently married in Philippines. As Philippines do not allow divorce. My children will face danger from my husband in Philippines who consider the man (sic) digrace (sic).”

6.The explanation for the delay given by all these Summonses and affirmations are: (1) the Applicants needed time to raise money for filing their appeal; and (2) they did not know about the time limit to appeal.

7.Reason (1) is not a good reason because there is no need to pay any fees for filing an appeal. The Applicants have filed the Summonses and affirmations without having to pay anything. They have all along been acting in person and have no difficulties conducting legal proceedings and advancing their claims by themselves. Also, despite the benefit of the extra time they had, they are not legally represented in the present applications. This reason is just a mere excuse.

8.Reason (2) is not a good reason because all statutory time limits are meant to be observed. Ignorance of the law and of the time limit is not an excuse, though for unrepresented litigants the court may show some indulgence, if there are merits in the issue in question and the non-compliance is trivial.

Prospect of success of the intended appeal

9.The grounds of intended appeal as disclosed by all these Summonses and affirmations are: (1) the Applicants disagree with the decision of this Court; and (2) the Court disregarded their dangerous situation.

10.Ground (1) as such is not a good ground of appeal for want of particulars. This ground is no more than an expression of disagreement. Without exception, people appeal because they disagree with the court’s decision. What an applicant has to show is a ground with sufficient particulars showing prospect of success in the intended appeal. The Applicants’ personal sentiment or disagreement with the decision is not enough.

11.Arguably, Ground (2) contains some particulars as to what the Applicants allege this Court had erred, namely that it erred in overlooking the fact that the mother is married under a holy sacrament which may not be dissolved by way of divorce proceedings in the Philippines; that while the Mother remained married she gave birth to two children outside of wedlock; that the Mother’s conduct tarnished or disgraced her husband; and that her husband will therefore be highly motivated to kill all the Applicants.

12.Both the Board and this Court are conscious of the fears of the Applicants. In Paragraph 4 of the Form CALL-1, this Court noted their claim of fear of being killed by the Mother’s husband and fear of discrimination by the Philippine society because the Daughter and Son were born outside of wedlock. The Applicants’ cases have been summarized in sufficient details in Paragraphs 4 to 8 of the Form CALL-1 showing that their concerns mentioned under this ground had been noted by the Board and by this Court.

13.The Board found some inconsistencies between the Mother’s testimony before the Board and her evidence in her non-refoulement claim forms (the “NCF”) and record of screening interview (“the Interview”) which showed that she exaggerated her case in the NCF and the Interview and that her testimony before the Board is closer to the truth[2]. It was on the basis of the Mother’s testimony that the Board found her husband had not threatened to kill her and had no intention to carry out any death threats[3]. Then, applying the law applicable to non-refoulement protection under the Unified Screening Mechanism (the “USM”), the Board found the feared harm and risk fell outside the protection of the four applicable grounds under the USM[4]. These are finding of facts by the Board. As explained in Paragraph 24 of the Form CALL-1, the primary decision-makers in a claim for non-refoulement protection are the Director of Immigration and the Board. The court in an application for judicial review may not intervene with such finding of fact save for errors of law, procedural unfairness and irrationality in the decision. Having examined the Board’s Decision with anxious scrutiny, this Court was unable to detect any such errors[5].

14.Ground (2) is no more than an expression of disagreement which falls far short of identifying any error of law, procedural unfairness or irrationality in this Court’s Decisions refusing their leave application, let alone disclosing any arguable defence that this Court erred in detecting those errors and that the intended appeal has good prospects of success. It is an attempt to challenge the Board’s finding of fact under the guise of judicial review. This is impermissible.

Conclusion

15.In view of the conclusions reached above, there is no need to consider the issue of prejudice to the respondent if extension of time is granted. For the above reasons, the application for extension of time to appeal is refused.

The applicants are not represented