RE LACANLALE TERESITA CRUZ

CAMP 215/2023, [2025] HKCA 746

On appeal from [2021] HKCFI 2587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 215 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 6 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 2 September 2021 ([2021] HKCFI 2587) dismissing her application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation and provided a written submission to support her application.   

3.  Under Order 59 rule 14A (1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of the Philippines now aged 74.  She last arrived in Hong Kong on 3 May 2005 and was given permission to remain to work as a foreign domestic helper.  After her employment contract expired on 20 January 2007, she did not depart and has since overstayed.  She was arrested by the police on 15 March 2013.  She later made a non-refoulement claim. 

5.  The basis of the applicant’s claim was set out in detail in [6] of the Director’s first decision and summarised by the Judge in [2] to [5] of the Form CALL-1.  In gist, the applicant claims that in 2003 she had made a report to the police about the illegal activities of a drug syndicate named Roy leading to his arrest.  Roy was later killed by other drug dealers.  Roy’s wife and their two sons have since 2003 been looking for her and the applicant fears that they will harm or kill her.   

6.  By two decisions dated 19 January 2015 and 26 May 2017, the Director rejected the applicant’s claim.  The first decision covers the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds while the second decision relates to the BOR 2 risk^[4] ground.  The Director’s reasons were summarised by the Judge in [7] and [8] of the Form CALL-1. 

7.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board.  An oral hearings were held on 8 October 2018 during which the applicant gave evidence and answered questions from the Board. 

8.  By its decision given on 6 December 2018, the Board dismissed the appeal on the ground that the applicant failed to establish her entitlement to no-refoulement protection under either of the applicable grounds.  The Board rejected the applicant’s claims in their entirety due to the inconsistencies, gaps and other problems in her evidence.  The Board considered there was no real risk that the applicant would face any of the prescribed forms of harm should she return to the Philippines.  The Board’s decision and reasons were summarised by the Judge in [10] of the Form CALL-1.    

9.  On 2 January 2019, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the Board’s decision.  The applicant did not provide any ground for seeking relief.  The applicant did not request for an oral hearing.  The Judge dealt with the application on paper.  By the Form CALL-1 dated 2 September 2021, the Judge refused to give leave to the applicant to apply for judicial review, holding that the intended judicial review has no prospect of success.  In brief, the Judge noted that the applicant had not put forward any grounds for seeking relief.  The Judge also found no error of law or procedural unfairness in the decisions of the Director and the Board, or failure to adhere to the high standards of fairness in the process before the Director and the Board and their consideration and assessment of the applicant’s claim. 

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 16 September 2021.

11.  By a summons filed on 27 January 2023, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge listed the application for an oral hearing on 4 May 2023.  The applicant did not attend the hearing.  By his decision handed down on 18 May 2023 ([2023] HKCFI 1255), the Judge refused the application. 

12.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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. 

13.  The applicant was late by more than 16 months, which is a very serious delay.  In the Court below, the applicant explained in her affidavit that she did not receive the Judge’s decision on time.  The Judge did not consider this a satisfactory explanation since the Form CALL-1 and the court order were sent to the address provided by the applicant and had not been returned by the Post Office.  In the present application, the applicant further explained in her written submission that the delay was because she suffers from old age and poor health, and she is ignorant of the judicial system.  She also stated that she had no intention to delay.  While we accept that the applicant is of advanced age, may not have enjoyed good health and is probably not familiar with the legal process, we share the Judge’s view that there is no satisfactory explanation for the very serious delay.  

14.  We turn next to consider the merits of the intended appeal, which is the most important consideration in a time extension application.  We would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

15.  The applicant has not provided any ground in the summons to support the intended appeal.  In her written submission, the applicant asserted that the Board and the Director failed to take into account or applied weight to relevant considerations, had taken into account irrelevant considerations and their decisions are illegal.  She also said that in the Philippines the risk to her life is overwhelming and she will face death as her enemies are still looking for her.    

16.  We are of the view that the applicant’s intended appeal has no prospect of success.  First, as the Judge correctly pointed out, the applicant has not provided any grounds for seeking relief in her Form 86 or the accompanying affidavit.  She has simply failed to show that her intended judicial review has any prospect of success. 

17.  Second, the applicant has not provided any particulars or details of the complaints she now makes against the decisions of the Director and the Board. There is no substance in the criticisms in her written submission.

18.  Third and importantly, the applicant has not pointed to any error in the Judge’s reasoning and decision.  On the legal principles set out above, the intended appeal is unarguable. 

19.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 6 June 2023.