RE EMMA LOIZAGA LLANES ALIAS LLANES EMMAL

HCAL 2630/2018

[2021] HKCFI 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2630 of 2018

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DECISION

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Background

1.  On 22 May 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review (“the Judge’s order”) against the decision of the Torture Claims Appeal Board/ Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 26 Oct 2018 and the decision of the Director of Immigration (“the Director”) dated 31 January 2018 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [12-21] of his decision (Form CALL-1).  Significantly the Judge found that the applicant’s intended application for judicial review had no reasonable prospect of success.

3.  By a summons filed on 28 July 2020, the applicant applied for extension of time to appeal against the Judge’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  She did not do so.  She now requires leave to extend time to appeal against that order out of time. The 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court ended on 5 June 2020.  She was therefore late by more than 1 ½ months with her intended appeal.

4.  In her summons and supporting affidavit of 28 July 2020, the applicant stated that she did not receive the judgment.  She did not provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.

5.  At the hearing on 26 January 2021, she explained her application was late because she did not receive the Judge’s order until someone from the court called her saying that she had to apply for appeal.  She said her ground of appeal was that she will be killed.  However, when asked why she will be killed, she answered she did not know.

Discussion

Principles governing application for extension of time to appeal

6.  The principles governing the exercise of the court’s discretion to extend time to appeal are well-established.  The court would consider: (1) the length of the delay; (2) the reasons for delay; (3) the merits of the intended appeal; and (4) any prejudice to the intended respondent (although the lack of prejudice does not mean that time should be extended).

Period of delay

7.  The intended appeal was more than 1 ½ months late.  The delay is not a short one.

Reasons for delay

8.  According to the court’s record, the Judge’s order and the Form CALL-1 were properly served upon the address given by the applicant.  The documents were sent to the applicant by post and have not been returned to the High Court as unclaimed or undelivered.  Presumably the documents reached the destination.  Moreover, it is not the usual practice for a court staff to inform an applicant by telephone the result in a non-refoulement judicial review application and require him/her to come to make application to appeal.  The applicant’s assertion is incredible.

9.  I do not accept the applicant’s explanation for the delay.  In any event, the more important factor is still the merit of her application.

Merits of intended appeal

10.  It is well-established that an application for leave to issue judicial review is not an opportunity for a re-hearing of the claim.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk 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. 

11.  The basis of the applicant’s claim is that she met her ex-boyfriend in 1992.  Before she left the Philippines for Hong Kong to work as a domestic helper, he confided to her that he was a member of the New People’s Army (NPA).  She was scared because she knew that those people were terrorists.  She refused to marry him.  After she came to Hong Kong in November 1992, she did not have contact with him. But she learned from her neighbour that her ex-boyfriend had gone to her house, and there were gunshots.  The next day, the neighbour found that her parents and brother had been killed.

12.  The Board accepted that the applicant had given birth to her daughter in Hong Kong.  The “father”, who told her he is a local citizen, disappeared when she was pregnant.  The daughter was then 19 years old at the time of appeal/ petition and not an applicant in the applicant’s appeal/ petition.  The Board did not accept that the applicant had an ex-boyfriend who was an NPA member, or the NPA killed her family members.  It found that the applicant invented the entire case to prolong her stay in Hong Kong.

13.  In his decision dated 22 May 2020, the Judge considered that when the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. The Judge was plainly correct.

14.  The Judge also found that her grounds for judicial review were untenable as there was no factual basis in support of her claim since the Board discredited her evidence.

15.  In the present case, the Board’s decision was mainly based on its adverse findings on the credibility of the applicant.  On the evidence before the Board, the findings were plainly open to the Board.  Such findings were within province of the Board and not to be interfered with, without errors or irrationality or procedural unfairness found by the Judge.

16.  Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are well justified.  I share the Judge’s view that the applicant’s claim for judicial review was not reasonably arguable and that leave to apply for judicial review should be refused.

Conclusion

17.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to give extension of time to appeal.  The summons dated 28 July 2020 taken out by the applicant is dismissed.