RE SERASINGHE ARACHCHIGE MALANIE

CAMP 104/2022

[2022] HKCA 1533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2022

(on appeal FROM HCAL NO. 1356 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 11 July 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 25 June 2018 which dismissed her appeal against the decision of the Director of Immigration (‘the Director’) dated 6 March 2017 rejecting her non‑refoulement claim. 

2.  In his decision of 29 November 2021, Deputy High Court Judge P Li 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 out of time, the applicant took out an application on 9 February 2022 before the Judge requesting an extension of time to appeal.  The Judge on 25 March 2022 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.  Due to the COVID‑19 pandemic, the court registry was temporarily closed between 7 March 2022 and 11 April 2022.  Upon re‑opening of the registry, the applicant filed the present summons on 14 April 2022 to make a further application to this Court for extension of time to appeal. 

5.  Pursuant to the directions of the Registrar of Civil Appeals on 14 April 2022, the applicant was required to provide written submissions to the Court by 28 April 2022.  The applicant has failed to do so, and pursuant to [5] of the same directions, the applicant is now deemed to have abandoned her right to rely on written submissions, and her notice of appeal will be dealt with on paper.

II.  Factual background

6.  The applicant is a national of Sri Lanka and came to Hong Kong as a visitor on 24 March 2004.  She was subsequently arrested for overstaying and raised her non‑refoulement claim by way of written submission on 14 July 2013.  The applicant claims that she would be killed or harmed by the enemies of her ex‑employer, a Mr Fernando who was a government officer and a member of parliament, if she is returned to Sri Lanka. Two of the enemies had raped her. 

7.  The details of the applicant’s claim have been summarized by the Judge at [2] to [10] of the CALL‑1 Form.

III.  The Director’s Decision

8.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 6 March 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as her other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

9.  The applicant appealed against the Director’s decision to the Board and attended an oral hearing on 22 March 2018 before the Board.  The Board found that the evidence presented simply did not support the applicant’s claim for non‑refoulement protection.  The Board was doubtful of the alleged rape incident that occurred some 14 years ago allegedly committed by enemies of Mr Fernando, of which the applicant made no report to higher authorities.  She was also uncertain when Mr Fernando had died.  Furthermore, there was reasonable state protection and ongoing efforts to improve the system of policing and general governance.  The Board, therefore, found that her past experience did not amount to persecution and her claim under BOR 3 also failed.  As there was no involvement of the state nor any evidence in support of a risk of any violation of her BOR 2 rights, this ground was also rejected along with the claim on torture risk.  Lastly, the Board was of the view that internal relocation was permissible.

10.  In light of the above findings, the Board dismissed the applicant’s claim on all applicable grounds on 25 June 2018.

V.  Decisions of the Judge

11.  On 11 July 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision. She did not provide her grounds in support of her application and in her supporting affidavit, she simply stated that she was not satisfied with the Board’s decision as she did not have sufficient time to prepare the necessary documents.  In his decision dated 29 November 2021, the Judge was of the view that the applicant was in Hong Kong for some 14 years, which was ample time to locate any relevant documents in support of her claim.  Therefore, the applicant’s explanation was rejected.  In any event, the Judge did not find any error of law, irrational findings, or procedural unfairness in the decision of the Board.  The Judge therefore refused to grant leave to apply for judicial review.

12.  In his decision dated 25 March 2022, the Judge held that there was substantial delay of two months and no explanation was provided.  While a new address was produced by the applicant, the Judge nevertheless found that the applicant must bear the consequences if it is due to her failure to update the Court with her new address.  As for merits, the Judge agreed with the views of the Board and refused to grant extension of time to appeal as there was no merit in the intended judicial review.

VI.  Legal principles

13.  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

14.  The applicant was late by about two months when she filed his application for extension of time to appeal.  We agree with the Judge’s comments at [9] of his decision dated 25 March 2022 that the burden lies with the applicant to inform the Court if there is a change of address, failing which the applicant must bear the consequences of delay.

2)  Prospect of the intended appeal

15.  We will turn to the merits of the intended appeal.

16.  In the applicant’s present summons and affirmation, the applicant repeated that her life is in danger if she is returned to Sri Lanka and that the Judge was wrong in accepting the findings of the Board.  These are simply bare allegations without any evidence in support.

17.  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.

18.  Furthermore, 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.

19.  As the applicant has not identified any error of law or procedural unfairness in the decision, the intended appeal cannot have any prospect of success.

VIII.  Disposition

20.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 14 April 2022.