RE LIBAO AURELIA PAZ BALMELERO

HCAL 883/2018

[2020] HKCFI 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 883 OF 2018 

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D E C I S I O N

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1.  On 22 November 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her non-refoulement claim upon finding none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 11 December 2019 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 6 December 2019, and hence she was late by 5 days with her intended appeal. 

3.  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 an 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.

4.  In the Applicant’s case, a delay of 5 days cannot be regarded as significant, for which she explained at the hearing of her summon that she never received the decision in the mail, and that it was only when she reported to her recognizance at the Immigration Department on 5 December 2019 that she was informed of the decision, and that by the time she was able to find a lawyer to help her to prepare the documents for her appeal, she was already out of time.

5.  The court record however shows that the decision was on the same day sent by post to the Applicant’s last reported address and has never been returned through undelivered post, and in the absence of any corroborating evidence from the Applicant, I am not satisfied with the Applicant’s claim that she had never received the decision in the mail.  Nevertheless, as already noted above, a delay of 5 days in the Applicant’s case cannot by any means be considered as significant, and I therefore propose to focus on the prospect of her intended appeal.    

6.  The Applicant however did not in her summons provide any draft or proposed grounds of appeal, and in her supporting affirmation of the same date, she stated as follows:

“ I am the Applicant herein. I am presently detained by the IMMD authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the hearing date due to that I was not able to attend the hearing. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

7.  Firstly, regarding her complaint that the decision was unfair without allowing her an opportunity to clarify her case, the fact is that the Applicant failed to attend the hearing scheduled on 13 August 2019 for her leave application for judicial review without any explanation, and the court record shows that the notice of that hearing was sent on 25 July 2019 by post to her address verified by her in writing only 2 weeks earlier on 8 July 2019, and that it has never been returned through undelivered post; and at the hearing of her summons for extension of time to appeal, she did not make any attempt to put forward any further clarification of her case which she claimed to have been denied the opportunity to do so in her earlier leave application.  As such I do not find any basis or merit in this complaint, or that it is reasonably arguable for her intended appeal.

8.  As for her complaint that the decision relied heavily on the Country of Origin Information provided by the Immigration Department, presumably those referred to in the Director’s decision, the Applicant did not provide any particulars or elaboration as to why it would be unfair for the Board to rely on those information, and given the nature of her claimed risks even on her own case that they arose entirely from domestic and/or family disputes between her and her husband and her cousins without any state or official involvement, and given the unchallenged findings of both the Director and the Board on the availabilities of both state protection and reasonable internal relocation for her to safely return to her home country without any of the risks arose from those family disputes, I do not find any merit in this complaint of the Applicant either, nor is it reasonably arguable for her intended challenge.      

9.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in her intended appeal. 

10.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse her application for extension of time to appeal, and dismiss her summons.