Martinez Arlyn Casagan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2065/2019

[2025] HKCFI 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2065 OF 2019

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“Director”). The Director rejected her application (“Director’s Decision) and she appealed to the Torture Claims Appeal Board (“Board”). Having considered her evidence, the Board, by its decision dated 24 May 2019 (“Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.By an order dated 6 November 2024 (“Order”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4.The applicant by a summons issued on 10 January 2025 (“Summons”) seeks extension of time to appeal against the Order, as the 14-day period for her to file her appeal under Order 53 Rule 3(4) of the RHC ended on 20 November 2024, and hence she was 51 days late with her intended appeal.

5.In her supporting affirmation filed on 10 January 2025 (“Affirmation”), the applicant only stated that: “I crave leave to Appeal out of time as I didn’t receive the order and judgment within 14 days. I should be given an [sic] reasonable opportunity to present my case.” She then produced the Order and the Court’s judgment (“Judgment”) of the same date as exhibits.

Discussion

6.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

7.The applicant attended the hearing for the Summons for 11 February 2025 (“Court Hearing”) and said that she only received the Order and the Judgment on 2 January 2025 from her landlord (“Landlord”). She said that the Landlord had key to her letterbox and the last time she met the Landlord before 2 January 2025 was in September 2024.

8.The aforesaid explanation of the applicant is far from satisfactory. There was no reason for the Landlord to take the applicant’s letters even though the Landlord might have key to her letterbox. The Order and the Judgment were sent by the Court to the applicant on 6 November 2024. They should have reached the applicant by mid-November 2024, the latest. If the Landlord had collected the applicant’s letters, there was no reason for the Landlord to keep the letters for more than 1.5 months before returning the same to the applicant. The Landlord might return the applicant’s letters to her easily by putting the same back into the letterbox. I do not accept her aforesaid explanation.

9.In the applicant’s case, a delay of 51 days is substantial and inordinate in view of the statutory period allowed under the RHC is 14 days. More importantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the Board’s Decision or why it may reasonably be argued that the Board’s Decision was unfair or unreasonable either in the Summons or in the Affirmation.

10.At the Court Hearing, the applicant only stated that her son (a Hong Kong resident) (“Son”) required medical treatment for his psychiatric illness and he would receive better medical treatment in Hong Kong. If she were refouled back to the Philippines, it would also affect her relation with the Son and her partner in Hong Kong.

11.The aforesaid reasons are not grounds for seeking non-refoulement protection nor grounds for judicial review of the Board’s Decision.

12.In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision being clearly and properly identified by the applicant, I do not see any prospect of success in her intended appeal to contend that the Court was wrong in refusing leave for her intended judicial review application.

13.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

14.The applicant’s claim was based upon her allegation that if refouled, she would be harmed or killed by her husband in the Philippines because of her extra-marital affairs in Hong Kong with the Son’s father.

15.Having considered the evidence, the Board did not accept the applicant’s evidence as it found that she was not a witness of truth. The Board rejected her claim as untruthful and did not accept that her husband in the Philippines had made any threat towards her or the Son in the past. The Board dismissed her appeal on that basis.

16.The applicant is not able to raise any valid reason to challenge the Board’s Decision. Thus, there is not any realistic prospect of success in her intended appeal.

17.In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

The applicant was unrepresented and attend the hearing in person.