RE NEPOMUCENO MARIANNE KHAMEA LLANA

CAMP 192/2023, [2024] HKCA 831

On Appeal From [2022] HKCFI 2700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 192 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 587 OF 2019)

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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 1 March 2019, the applicant issued her application for leave to apply for judicial review by Form 86 in HCAL 587/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 19 February 2019 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’)  dated 11 April 2018 rejecting her non-refoulement claim.  Deputy High Court Judge Bruno Chan refused to grant leave on 31 August 2022.

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 (i.e. by 14 September 2022).  Being out of time for about one month and 10 days, the applicant took out an application on 24 October 2022 before the Court requesting an extension of time to appeal.  Deputy High Court Judge Bruno Chan on 3 February 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 16 May 2023, 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 national of the Philippines.  She has been working as a foreign domestic helper since 2010.  The applicant’s employment contract was prematurely terminated in May 2016 and she overstayed since June 2016.  She raised a non-refoulement claim in September 2016[1].  

6.  The basis of the applicant’s non-refoulement claim is that she[2] alleged that she would be harmed or killed by a loan shark called Jaime.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 11 April 2018. 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[3] (‘the Director’s Decision’).

4)  The Board’s Decisions

8.  An oral hearing was conducted by the Board on 17 September 2018.  The Board dismissed the applicant’s appeal and the Director’s Decision was affirmed.  The Board held that the applicant’s evidence during the hearing was generally consistent with her previous claims[4]. However, the Board does not accept that Jaime would be able to locate the applicant wherever she went in the Philippines.  Even on the applicant’s own assertion, she has stated that Jaime was unaware that the applicant came to Hong Kong or that her mother has moved to Batangas, and they both have not heard from Jaime for over eight years[5].  The applicant has lived and worked in a number of cities in the Philippines and in Hong Kong.  She was trained as a nurse albeit uncompleted.  The applicant’s claim of fear of harm from Jaime cannot be established.  Real risk of harm was absent[6].

5)  Decisions of the Judge

9.  In his decision dated 31 August 2022, the Judge held that no ground for seeking relief was contained in the applicant’s Form 86 and supporting affirmation.  No details nor particulars were provided.  There is no error of law or procedural unfairness[7].

10.  In his decision dated 3 February 2023, the Judge held that the applicant’s explanation for her delay was not acceptable.  The Form CALL-1 was sent on the same day to the applicant’s last known address without being returned.  The Judge held that the applicant did not put forth any valid grounds of appeal. There was no prospect of success in the intended appeal.  The application for extension of time for appeal was refused.

6)  Legal principles

11.  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

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

13.  The Form CALL-1 decision was handed down on 31 August 2022.  The deadline for the appeal was 14 September 2022.  The applicant was about one month and 10 days late when she filed her extension of time to appeal application on 24 October 2022.  The applicant made bare assertion in her summons and affirmation by simply saying that she did not receive the decision or that there was a change in address but without providing any further details in support[8].

(2)  Prospect of the intended appeal

14.  In the applicant’s summons, the applicant repeated that she did not receive the decision in time.  The applicant’s affirmation repeated the same matters.  In the applicant’s written submission, she stated the following without specifying how they relate to the particulars of her case.  They include the following in summary :

i)  The applicant has no idea about appeal procedure;

ii)  The applicant’s case was rejected simply due to lateness;

iii)  The Judge did not consider the applicant’s reasons for lateness;

iv)  There is still life threatening fear for the applicant if she returns to the Philippines; and

v)  The Director and the Board failed to take into account relevant considerations and took into account irrelevant considerations.

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

16.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review and refused extension of time.

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 16 May 2023.