RE BALASURIYAGE SUJEEWA PRIYANGANIE

HCAL 2893/2018

[2021] HKCFI 1952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2893 OF 2018

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D E C I S I O N

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1.  The applicant is from Sri Lanka.[1] According to her recollection, she came to Hong Kong via Lo Wu Control Point on 1/5/2006. She overstayed after her visitor visa expired on 15/5/2006. She was arrested by the police on 6/2/2015. She filed the non-refoulement claim in this case on 8/2/2015.

2.  If she returned to Sri Lanka, she feared that the Tamil Tigers might attack her.  She would be killed or harmed by the wife and brother-in-law of the married man (M)  with whom she had an affair.  She might also be harmed by her creditor as she was unable to repay the loan.  The Director rejected her claim on 29/3/2018.  The TCAB rejected her appeal on 3/12/2018. 

3.  On 17/12/2018, the applicant applied for leave for judicial review of both decisions.

4.  On 7/8/2020, Deputy Judge Lung refused leave for judicial review.  The Judge reiterated that it was for the TCAB and the Director to assess the evidence and risk of harm.  He found no error of law or procedural unfairness.  The decisions were rational.  The applicant failed to show that there was any reasonable prospect of success in the intended judicial review.

5.  The applicant filed a summons on 2/11/2020 for extension of time to appeal against the decision of Deputy Judge Lung.  She was about 10 weeks out of time.

6.  In the summons, the applicant asserted that she did not receive the court decision within the time for appeal.  The landlord kept the key of the letter box.  The landlord only came once a month.

7.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.[2]

8.  The applicant is out of time for about 10 weeks.  It is substantial delay.  She alleged that the landlord kept the key of the letter box causing the delay.

9.  She mentioned that the landlord came once each month.  She did not mention further detail.  Even assuming that was true, she should have received the court decision sometime in September 2020.  Had she been conscientious to process her claim, she should be able to file her appeal sometime in October.

10.  I also notice that the applicant had changed address in the summons.  She had not updated the new address with this court.  It is uncertain when she moved to the new address.  If that is the reason for the delay, she must bear the consequence of failure to update her address with this court.

11.  While I have grave reservation as to the reasons for delay, the important issue at this stage is the merits of the intended judicial review [3].

12.  The applicant claimed that her family life was disrupted by the the Tamil Tigers around 2000.  Her brother was kidnapped and her house was burnt down.  She then relocated to Jaeca where she developed an affair with the married man (M).  In 2002-2004, M’s wife and her brother harassed her.  She was assaulted and raped.  She eloped to Kurunagala with M.  In 2006, she borrowed money from a creditor for the agent fee to come to Hong Kong to stay away from M and harassment by M’s wife.

13.  The Director rejected her claim.  There was no evidence that the Tamil Tigers targeted her.  She could stay safely in the vicinity of her home town.  Despite the harassment by M’s wife and the gang, she chose to stay with M.  She had never reported the incidents to the police.  Given that M had divorced her wife in 2002, the threat should have dissipated.  As to the loan, the creditor had never pressed her for repayment.  The Director rejected her claim on all grounds holding that there was no personal and real risk of future harm or ill-treatment. [4]

14.  The adjudicator found that there was no evidence that the applicant lost her family and her house because of the attacks by the Tamil Tigers.  She had never followed up with the authorities.  The applicant still had contact with M. They wanted to reunite in future.  This was inconsistent with her initial purpose for fleeing Sri Lanka.  As to the rape incident, the applicant was vague and inconsistent.  She and M had not reported to the police.  The applicant was also inconsistent as to when she obtained her passport.  She had never discussed with the creditor concerning repayment.  The adjudicator concluded that the applicant’s assertions were fanciful and she was not at any real risk of harm.[5]

15.  I agree with the judgment of Deputy Judge Lung.  I also agree with the decisions of the adjudicator and the Director.  The applicant was not credible. The intended judicial review was of no merit.

16.  In the circumstances, I refuse the application for extension of time to appeal.