RE RESURRECCION MARYJANE YACAPIN

CAMP 224/2022

[2023] HKCA 345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 224 OF 2022

(ON APPEAL FROM HCAL NO. 2085 OF 2018)

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DECISION

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

I.  Renewed application for extension of time to appeal

1.  On 2 October 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/Non - refoulement Claims Petition Office (the ‘Board’) dated 30 August 2018 which dismissed her appeal against the decision of the Director of Immigration (the ‘Director’) dated 23 November 2017 rejecting her claim for non - refoulement protection.

2.  In his decision of 23 February 2022 (the ‘Decision’), Deputy High Court Judge KW Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant filed a summons on 10 May 2022 for leave to appeal out of time.  The Judge on 17 June 2022 rejected the applicant’s application (the ‘EOT Decision’).

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 29 June 2022, 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, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affidavit and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Background

6.  The applicant is a national of Philippines.  She entered Hong Kong as a domestic helper on 26 February 2016.  After her contract was terminated prematurely, she left Hong Kong but re - entered on 29 November 2016 as a visitor.  She overstayed and surrendered to the Immigration Department on 19 December 2016.  She later lodged her non - refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband and certain killers whose faces she saw when she witnessed a murder in January 2016.

7.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Decision.

III.  The Director’s Decision

8.  The Director refused the applicant’s claim on the grounds of Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.

IV.  The Board’s Decision

9.  After a hearing held on 16 May 2018, the Board dismissed the applicant’s appeal on the grounds that there were discrepancies and inconsistencies in the applicant’s account of events and refused to accept the material aspects of her claim as to the murder and the husband’s threats or assaults.  The Board therefore rejected the applicant’s claim on all applicable grounds.

V.  Decision of the Judge

10.  The applicant did not identify any grounds for seeking relief in the Form 86.  In her affidavit, she claimed that the Board had disregarded her dangerous situation.

11.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

12.  The Judge examined the Board’s Decision with rigorous examination and anxious scrutiny but did not find any error of law or procedural unfairness in the Board’s Decision or any ground to challenge the Board’s findings as Wednesbury unreasonable or irrational.  The Judge was not satisfied that there was any realistic prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

13.  In the EOT Decision, the Judge focused on the merits of the case.  The Judge found that there was no realistic prospect of success in the intended appeal and therefore refused the applicant’s application for extension of time to appeal.

VI.  Legal principles

14.  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.

VII.   Analysis

1)  Length of delay and reasons for the delay

15.  The applicant was late for about two weeks when she filed her application for extension of time to appeal before the Judge.  She did not provide any satisfactory explanation for the delay.  Nevertheless, we shall focus on the merits of the intended appeal.

2)  Prospect of the intended appeal

16.  The applicant did not identify any proposed grounds of appeal.  In the summons and affidavit filed on 29 June 2022, she merely stated that she would like to review the Decision and that the court had disregarded her dangerous situation.

17.  In her written submissions dated 13 July 2022, she complained that asylum is a complicated matter and that she did not receive adequate legal assistance in making her non - refoulement claim.  She claimed that the Board failed to make sufficient enquiry and refused her appeal without any reason.  She reiterated that her fear was genuine and that her life would be at peril if she returned to Philippines.  She mentioned the Judge’s Decision and EOT Decision, but did not identify any error on the part of the Judge in arriving at such decisions.  She also referred to section 37ZO of the Immigration Ordinance (Cap. 115) without explaining how the provision was relevant to her case.

18.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

19.  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.

20.  In our view, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII.  Disposition

21.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 29 June 2022.