RE GALLETIS DOMINICA DOSCA

HCAL 2078/2018

[2021] HKCFI 2252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2078 OF 2018

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D E C I S I O N

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1.  The applicant is from the Philippines.[1] She came to Hong Kong on 11/6/2014 as a visitor. She overstayed until she was arrested by the police on 20/1/2015. She filed the non-refoulement claim in this case on 22/1/2015. She feared that her ex-partner might harm her if she returned to the Philippines.

2.  The Director rejected her claim on 25/1/2018.  The TCAB rejected her appeal on 27/9/2018. 

3.  She applied for leave for judicial review of the TCAB decision on 2/10/2018.  This court fixed a hearing on 10/12/2020.  She did not turn up.  The notice of hearing was sent to her last known address.  It was supplied by her in writing on 23/10/2020.  There was no return of mail [2]. I proceeded to deal with the leave application on paper.

4.  In my view, the factual basis of her claim was not credible especially in relation to the murder of her father and the delay of her application for the non-refoulement claim.  I am satisfied that there was no error of law nor was there any procedural irregularity.  The decision of the TCAB was rational.  I refused leave for judicial review on 3/3/2021.

5.  The applicant filed a summons on 22/3/2021 for extension of time to appeal against my decision.  She was about 5 days out of time.

6.  In her affidavit, the applicant asserted that she did not receive the court decision by mail.  She only obtained the court decision after searching the court file.  When she learned that the appeal period was 14 days, the deadline had already expired.

7.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court 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.[3]

8.  The applicant is out of time for about 5 days.  It is not substantial.  She also alleged that she had not received the court decision.  According to the court record, the decision was sent to the last known address of the applicant at Hong Lok Road, Yuen Long.  There was no return of mail.  This address was supplied by the applicant in writing on 23/10/2020.  It was the same as recorded in her summons dated 22/3/2021.

9.  There was no further explanation why she failed to receive the court decision.  There was no detail about when she searched the court file.  Nor was there any detail how long she spent making enquiries about the appeal period.  In my view, her experience in processing the appeal to TCAB must have raised her awareness of a time limit.  

10.  I have grave doubt about her explanation for the delay.  However, the most important issue at this stage is the merits of the intended judicial review [4].

11.  The applicant cohabited with her ex-partner and had two daughters.  Since 2001, she was often assaulted by him.  She reported an attack in 2004 leading to his detention for one month.  She left him since then.  She did not testify against him as she had to travel abroad on business.  She eventually operated her own garment shop around 2010.  Her ex-partner continued to pester her.  In June 2014, she came to Hong Kong for sightseeing initially.  However, she overstayed in Hong Kong.  During this time, her ex-partner shot dead her father in the Philippines.  Her family did not report the murder.  She did not return to the Philippines as she was afraid her ex-partner might locate her and cause harm.

12.  The adjudicator found that the applicant had been travelling to Hong Kong on many occasions since 2007.  These took place at the time when she was persistently assaulted and threatened by the ex-partner.  Even when her father was murdered in July 2014, she did not immediately seek non-refoulement protection in Hong Kong.  She delayed the application until January 2015 after she was arrested.  The applicant told the adjudicator that her ex-partner was a member of a criminal gang.  This was never mentioned to the Director.  The adjudicator rejected her evidence as it was vague and unconvincing. The adjudicator found that there was no assault since 2004 and no contact between them for over 10 years.  Her appeal was dismissed.

13.  I agree with the decision of the adjudicator.  The applicant failed to establish that there was any real risk of harm.  The intended judicial review was of no merit.

14.  In the circumstances, I refuse the application for extension of time to appeal.