SAMONTE GERLIE GERSEY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3696/2019

[2025] HKCFI 5061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3696 OF 2019

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D E C I S I O N

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Introduction

1.  The Applicant is a Filipino. She entered Hong Kong on 9 May 2018, and was permitted to remain as a foreign domestic helper until the earlier of 9 May 2020 or 2 weeks after termination of her contract. Her contract was prematurely terminated on 4 June 2018. She did not depart and has overstayed in Hong Kong since 19 June 2018. She was arrested by the police on 25 July 2018 and was referred to the Immigration Department on 26 July 2018.

2.  The Applicant first made the non-refoulement claims by way of written representation on 23 August 2018. She had supplemented her application subsequently with the assistance of a lawyer.

3.  On 22 January 2019, the Director of Immigration refused the Applicant’s non-refoulement claims. The Applicant’s subsequent appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office was dismissed on 14 November 2019 (the “Board’s Decision”).

4.  By Form 86 filed on 11 December 2019, the Applicant applied for leave to apply for judicial review against the Board’s Decision (the “Leave Application”). The hearing of the Leave Application took place on 6 March 2025 and the Applicant attended in person. The Applicant did not provide any grounds in support of the Leave Application in the Form 86 or in the supporting Affidavit. At the hearing, the Applicant simply said she had 3 children in Hong Kong and she had to take care of all of them. The Applicant did not explain why the Board’s Decision was erroneous.

5.  By the decision dated 11 April 2025 ([2025] HKCFI 1261) (the “Court Decision”), this Court dismissed the Leave Application on the ground that the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.

6.  By the Summons filed on 30 May 2025, the Applicant applied for an extension of time to appeal against the Court Decision, as the 14‑day period for her to file the appeal under Order 53 rule 3(4) of the Rules of the High Court had expired (the “Application”).

7.  The Application was heard on 11 July 2025. At the said hearing, the Applicant indicated that she had applied for legal aid on 4 July 2025 in respect of the Application. I therefore made an order that the Application be adjourned for 42 days from 4 July 2025 pending the Applicant’s application for legal aid. On 16 September 2025, the Applicant’s application for legal aid was refused. As a result, a hearing was fixed on 13 October 2025 (the “Hearing”), and the Applicant attended in person.

8.  At the Hearing, when being asked about the delay in filing the Application, the Applicant said at the time, she had just moved in the new address and did not have the mail box key. She said the landlord was in Chinese Mainland at the time and she was only given the mail box key in or about the second or third week of May 2025. The Applicant said upon receipt of the Court Decision, she immediately asked a friend to help to file the Application.

9.  The Applicant further indicated that she was, at the time of the Hearing, 8-week pregnant. She had submitted medical report in support of the aforesaid, and she said the pregnancy was not planned.

10.  Apart from the above, the Applicant indicated that she had nothing to say in respect of the Application.

Discussion

11.  In considering whether to extend the time to appeal, it is trite that the court will take into account: (1) the length of the delay; (2) the reason(s) for the delay; (3) the prospect of the intended appeal; and (4) the degree of prejudice to the other party if an extension of time is granted. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued. (see Re Mushtaq Imran Ali [2025] HKCA 705, at §§16-17)

12.  In the present case, there was delay of about a month. There was no explanation for the delay in the supporting Affidavit. The Applicant’s explanation at the Hearing is not supported by any documentary evidence. I have reservation about the truthfulness of the Applicant’s explanation. Nevertheless, I shall proceed to consider the merit of the intended appeal before deciding on the Application.

13.  In the Summons and in the supporting Affidavit, the Applicant did not provide any grounds in support of the intended appeal. She only stated in the Summons that she did not agree with the Court Decision. Despite being given a further opportunity to make submissions in respect of the Application at the Hearing, save and except pointing out that she was pregnant, the Applicant did not provide any grounds in support of the intended appeal.

14.  I have considered the Court Decision together with the Board’s Decision in detail. The Board had plainly considered and assessed the Applicant’s situation comprehensively and had provided reasons in support of its decision. The Court had reviewed the Board’s Decision and came to the correct decision that there is no realistic prospect of success in the intended challenge of the Board’s Decision (§§7-10). I do not see any errors of law, procedural unfairness or irrationality in the Court Decision. Neither has the Applicant made any such allegations. Accordingly, I fail to see any prospect of success in the intended appeal.

15.  For completeness, I do not regard the Applicant’s pregnancy to be relevant to the Application.

Conclusion

16.  As there is no satisfactory explanation for the delay, and more importantly no prospect of success in the intended appeal, I refuse to extend the time for the appeal. The Application is hereby dismissed.