RE DELA LUNA MERLE LUARCA

CAMP 463/2021

[2021] HKCA 1954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 463 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1824 OF 2018)

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J U D G M E N T

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Hon Chu JA (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 10 July 2020 refusing her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission in support of 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 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.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  rejecting her non-refoulement claim.

5.  The applicant is a national of the Philippines aged 62.  She first came to Hong Kong to work as a domestic helper in 1985.  She last arrived in Hong Kong on 27 November 2005 and was permitted to remain to work as a domestic helper until 13 June 2007.  She overstayed and was arrested by the police on 7 September 2017.  On 23 November 2017, she raised a non-refoulement claim on 22 February 2014 based on fear of being harmed or killed by the people of a collaborative credit union due to her default in making repayment to her loan.  The details of the applicant’s claim were set out in the Director’s decision at [6].  We will not repeat them.     

6.  By his decision dated 27 March 2018, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and the BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board against the Director’s Decision was heard on 20 June 2018, during which the applicant gave evidence and answered questions from the Board.  By its decision dated 19 July 2018, the Board dismissed the appeal.  The Board found the applicant was not truthful about the loan and the reasons for her overstaying in Hong Kong.  The Board did not accept the applicant would face any risk of danger to her life upon her return to the Philippines.  The Board also found there is sufficient state protection and that internal relocation was viable, which would reduce or negative any risks of harm faced by the applicant.  The Board concluded that the applicant failed to establish any entitlement to non-refoulement protection on any of the applicable grounds.

8.  On 4 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  In neither of the documents had the applicant set out any ground for seeking relief.   

9.  The Judge listed the application for a hearing on 25 October 2019, at which the applicant was absent.  The Judge therefore proceeded to consider the application on the papers.  By a Form CALL-1 dated 10 July 2020[5], the Judge dismissed the application on the ground that the applicant failed to show that the intended judicial review had a reasonable prospect of success.  

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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 24 July 2020.

11.  By a summons filed on 11 September 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers and refused the application by a decision handed down on 30 July 2021[6]. 

12.  On 18 October 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal. 

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by seven weeks when she filed the 11 September 2020 summons.  The delay is not insubstantial.  Both before the Judge and in the present application, the applicant offered no explanation for the delay.  In the absence of any satisfactory explanation of the delay, the applicant has to show that the intended appeal has a real prospect of success. 

15.  In considering the merit 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].

16.  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 Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant has not provided any ground of appeal in her summons or affirmation.  

18.  In the written submission, the applicant stated that there was no way she could return to the Philippines because the leaders of the collaborative union want to kill her in connection with a loan taken out by her deceased friend and she was the guarantor of the loan.    

19.  In our view, the written submission did not contain arguable grounds of appeal against the Judge’s decision.  Importantly, she has no challenge to the Judge’s decision. Further, her assertion of risk of danger is unsustainable in light of the Board’s rejection of the facts underlying her claim, and she has not pointed to any error in the Board’s findings.   

20.  We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  The intended judicial review has no reasonable prospect of success and the Judge did not err in dismissing the application for leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 18 October 2021.