RE BESLUMBRE SHENYL LAVANDERO

CAMP 137/2025, [2025] HKCA 1114

On an intended appeal from [2025] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 137 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 2627 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (the Judge”) dated 18 March 2025 ([2025] HKCFI 755) dismissing her application for leave to apply for judicial review. Her intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 30 August 2019 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 15 May 2017 which rejected her non-refoulement claim.

2.  The applicant has filed a supporting affirmation. Despite directions given by the Court, she did not lodge any written submission to support her application.   

3.  Under Order 59 rule 14A (1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of the Philippines now aged 42.  Between 2002 and 2012, she worked in Hong Kong as a foreign domestic worker.  In June 2012, she gave birth to her son in Hong Kong.  She later departed for the Philippines with her son.  She last arrived in Hong Kong on 18 October 2014 and was given permission to remain as a visitor for 14 days.  She overstayed.  On 21 November 2014, she surrendered to the Immigration Department and lodged a non-refoulement claim based on fear of being harmed or killed by her father because she has an illegitimate child. 

5.  The applicant’s claim was set out in [7] to [20] of the decision of the Board.  In gist, the applicant claims, as accepted by the Board, that while working in Hong Kong, she converted to the Muslim faith.  She developed a relationship with a Pakistani man (“Hussain”) and gave birth to her son, who is a permanent resident of Hong Kong.  Her employment was terminated, and in 2013 she returned to the Philippines together with her son.  Hussain did not join them, despite his promise to do so, and the applicant has since lost contact with him.  The applicant’s father was furious after finding out that the applicant and her son practised the Muslim faith, and was further irritated by the fact that Hussain did not go to the Philippines to marry the applicant.  The applicant and her son were under immense stress living with her parents.  In 2014, the applicant’s father became an alcoholic and would threaten the applicant when he was drunk.  The applicant’s mother secretly told the applicant to leave with her son as her father planned to kill her because she had brought shame to him by having a child born out of wedlock. The applicant did not make a report to the police about it because she considered it would be futile and also because the applicant’s father has a half- brother who is a policeman with political connection.  Fearing for their safety, the applicant and her son returned to Hong Kong with a loan from her friend.   

6.  By his decision, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk^[4] grounds.    

7.  The applicant appealed the Director’s decision to the Board.  An oral hearing was held on 30 November 2018 during which the applicant gave evidence and answered questions from the Board.  Her evidence was summarised at [57] to [67] of the Board’s decision.

8.  The Board accepted the bulk of the applicant’s evidence, including the disgruntlement of her father and his threat to the applicant and her son.  The Board, however, found that he lost control due to alcoholism and did not really have a plan to harm or kill the applicant and her son, nor did he have accomplices or act in concert with his half-brother. The Board also found that the applicant had exaggerated his response to the applicant having a son born out of wedlock.  The Board was not persuaded that there is risk of harm to the applicant or her son from the applicant’s family members.  The Board also found internal relocation was reasonably viable and would reduce or avoid any risk that the applicant might face.  The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds.    

9.  On 10 September 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant did not provide any ground for seeking relief.  The Judge heard the application at an oral hearing held on 12 February 2025.  By a judgment dated 18 March 2025, the Judge refused to give leave to the applicant to apply for judicial review, holding that the intended judicial review has no prospect of success.  In brief, the Judge noted that the applicant had not put forward any grounds for seeking relief, that assessment of risk of harm and viability of internal relocation are within the province of the Board, and the Court would not interfere with its decision unless there are errors of law or procedural unfairness or irrationality in the Board’s decision. 

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 1 April 2025.

11.  By a summons filed on 3 April 2025, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on papers.  By his decision handed down on 15 July 2025 ([2025] HKCFI 2601), the Judge refused the application. 

12.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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. 

13.  The applicant was late by 2 days, which is not a significant delay.  In the Court below, the applicant explained in her affidavit that she did not receive the Judge’s decision on time.  In view of the short delay and the fact that the applicant acts in person, we would focus on the merits of the intended appeal, which is a most important consideration in a time extension application.  

14.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

15.  The applicant has not provided any ground in the summons to support the intended appeal.  She merely stated that she wanted to appeal the decision and she would prove her case to the Court of Appeal.  As noted above, she has not lodged any submission to support her application.

16.  We are of the view that the applicant’s intended appeal has no prospect of success.  First, as the Judge correctly pointed out, the applicant has not provided any grounds for seeking relief in her Form 86 or the accompanying affidavit.  She has simply failed to show that her intended judicial review has any prospect of success.  Second and importantly, the applicant has not pointed to any error in the Judge’s reasoning and decision. On the legal principles set out above, the intended appeal is unarguable. 

17.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 24 July 2025.