Re Loria Flordeliza Tayaban

CAMP 126/2024, [2025] HKCA 184

On Appeal From [2021] HKCFI 2606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 126 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 846 OF 2021)

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DECISION

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

1)  Renewed application for extension of time to appeal

1.On 8 June 2021, the applicant issued her application for leave for judicial review by Form 86 in HCAL 846/2021.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 17 May 2021 which confirmed the Director’s Decision of 5 February 2021.  Deputy High Court Judge KW Lung refused to grant leave for judicial review on 10 September 2021.

2.Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge. Being out of time for over two months, the applicant took out an application on 8 December 2021 before the Judge requesting an extension of time to appeal. The Judge on 31 May 2024 rejected the applicant’s application for extension of time to appeal.

3.On 11 July 2024, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.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 submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.Briefly stated, the applicant is a Philippines national.  She last entered Hong Kong in January 2013 as a domestic worker.  With her leave to stay extended, the applicant was permitted to stay till March 2016. Her employment was terminated and she overstayed in Hong Kong.  In December 2020, she was intercepted by the police.  The applicant raised a non-refoulement claim on 7 December 2020 alleging that if she returned to the Philippines she would be harmed or killed by two loan sharks for non-repayment of loan[1].

6.The background facts have been summarized in the decision of the Judge at [4] to [5].

3)  The Director’s Decision

7.The Director decided against the applicant’s non-refoulement claim on 5 February 2021.   The Decision covered Hong Kong Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution[2] (‘the Director’s Decision’).

4)  The Board’s Decision

8.The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[3].  After a hearing held on 22 April 2021, the Board dismissed the applicant’s appeal on 17 May 2021 (‘the Board’s Decision’).

9.The Board’s finding is summarized in the decision of the Judge at [8]-[9].

5)  Decisions of the Judge

10.In his decision dated 10 September 2021, the Judge held that the applicant did not state any specific ground for judicial review[4].  There was no error of law or procedural unfairness[5].  

11.In his decision dated 31 May 2024, the Judge held that the applicant was deemed to have received the Court’s decision[6] since the decision which was resent to her, although ‘refused’ and returned to Court, had been posted to her address which had been confirmed with the Immigration Department. The applicant provided no valid reason to challenge the Board’s Decision.  The application for extension of time for appeal was dismissed[7].

6)  Legal principles

12.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.

7)  Analysis

(1)  Length of delay and reasons for the delay

13.Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge. 

14.The Form CALL-1 decision was handed down on 10 September 2021.  The applicant was over two months late when she filed her extension of time to appeal application on 8 December 2021.  The applicant barely stated that she did not receive any correspondence from the Court without further explanation[8].

(2)  Prospect of the intended appeal

15.In the applicant’s summons, the applicant stated that she would advance a new sole ground of appeal but did not provide what that was.  In the applicant’s affirmation, she stated that the decision of the High Court was reached unfairly without giving her an opportunity to clarify her case and situation in her country.  The applicant’s written submission consists entirely of general statements of law, quotation from cases, bald assertions of procedural unfairness and reference to section 37 ZT of the Immigration Ordinance.

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

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

8)  Disposition

18.As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 11 July 2024.

Applicant, unrepresented, acting in person