RE LEONCIO JULIE MADRIAGA

CAMP 418/2021

[2022] HKCA 569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 418 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1941 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Renewed application for extension of time to appeal

1.  On 14 September 2018, the applicant issued her application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 7 September 2018 dismissing her appeal against the decision of the Director of Immigration (‘the Director’)  dated 28 September 2017 rejecting her non-refoulement claim. The application was brought within time.

2.  In his decision of 23 December 2020, Deputy High Court Judge C P Pang refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being late by 20 days, the applicant took out an application on 26 January 2021 before Deputy High Court Judge Bruno Chan requesting an extension of time to appeal.  Judge Chan on 30 September 2021 rejected the applicant’s application.  

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 30 September 2021 (within time), the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

5.  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 and affidavit, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  The applicant is a Philippines national.  She came to Hong Kong to work as a foreign domestic helper.  Her employment contract was prematurely terminated but she did not depart and overstayed for over four years.  The applicant raised her non-refoulement claim in June 2014 on her fear that she would be harmed or killed by her uncle and cousins if she returned to the Philippines due to a land dispute of her mother.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 28 September 2017.  The Decision covered Bill of Rights (‘BOR’)  Article 3　(torture/inhuman treatment)  and Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was conducted on 6 July 2018.  The Board dismissed the applicant’s appeal on 7 September 2018 and the Director’s Decision was confirmed.  The Board held the core of the applicant’s evidence being the killings and the land dispute lacked credibility.

5)  Decisions of Judges

9.  In his decision dated 23 December 2020, Judge Pang held that the applicant did not provide any particulars in her Form 86 and affidavit.  He held that the documents included in the applicant’s application were irrelevant, and she failed to show that there was any error of law or procedural unfairness in the Board’s decision.  The applicant’s claims were far-fetched and unconvincing.

10.  In his decision dated 30 September 2021, Judge Chan held that the applicant did not provide particulars to explain her lateness in her application to appeal.  The court’s decision was sent to the applicant at her last known address without being returned undelivered.  Importantly, the applicant failed to put forward any proper ground of appeal or explain any error in the court’s decision.

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.  The applicant was late by 20 days.  The applicant gave no supporting particulars in her summons and affidavit other than saying that she received the decision late.  In any event, the applicant failed to put forward any proper grounds of appeal.

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, the applicant simply stated that she wanted to challenge the decision, and that she did not receive the court’s letter without giving any particulars or specifics.

14.  In our judgment, the applicant does not have any prospect of success in her intended appeal.  Judge Pang had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

15.  Since the applicant has not identified any error of law or procedural unfairness in Judge Pang’s decision, the intended appeal cannot have any prospect of success.

8)  Disposition

16.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 30 September 2021.