DALUYEN JOAUNIE DELIGEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1951/2019

[2025] HKCFI 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1951 OF 2019

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BETWEEN

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“Director”). The Director rejected her application (“Director’s Decision) and she appealed to the Torture Claims Appeal Board (“Board”). Having considered her evidence, the Board, by its decision dated 26 June 2019 (“Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By an order dated 16 October 2024 (“Order”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4.  The applicant by a summons issued on 19 November 2024 (“Summons”) seeks extension of time to appeal against the Order, as the 14-day period for her to file her appeal under Order 53 Rule 3(4) of the RHC ended on 30 October 2024, and hence she was 20 days late with her intended appeal.

5.  In her supporting affidavit filed on 19 November 2024 (“Affidavit”), the applicant stated that: “I am appealing my claim application because my life is still in danger if I were to be sent back to my home country (the Philippines)”. In the Summons, the applicant stated that: “The people I am avoiding in the Philippines still exist. They are waiting for me to return and they will get back on me.”

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

7.  In the applicant’s case, a delay of 20 days must be considered as substantial and inordinate in view of the statutory period allowed under the RHC is 14 days. In the Affidavit, the applicant gave no explanation for her delay in lodging her intended appeal.

8.  The applicant explained at the hearing of the Summons that the only reason for her delay in lodging her intended appeal was because she was not familiar with the appeal process.

9.  Ignorance of the law is not generally an excuse for delay (Chen Cheryl Deanna v Chen Pak Yin Stella, HCMP 1061/2017, 4 August 2017). More importantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the Board’s Decision or why it may reasonably be argued that the Board’s decision was unfair or unreasonable either in the Summons or in the Affidavit, nor was she able to do so at the hearing of the Summons.

10.  She confirmed to the Court at the hearing of the Summons that she did not find any error of law, procedural unfairness or irrationality in the Board’s Decision. She only maintained that she was still in danger and wanted to stay in Hong Kong for another year until it was safe for her to return to the Philippines.

11.  In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision being clearly and properly identified by the applicant, I do not see any prospect of success in her intended appeal.

12.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

13.  The applicant’s claim was based upon her allegation that if refouled, she would be harmed or killed by the attacker who had stabbed someone in her presence.

14.  Having considered the evidence, the Board did not accept the applicant’s evidence as it found that she was not a witness of truth. It dismissed her appeal on that basis.

15.  The applicant is not able to raise any valid reason to challenge the Board’s Decision. Thus, there is not any realistic prospect of success in her intended appeal.

16.  In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.