HKCA 302
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 429 OF 2020
(ON APPEAL FROM HCAL NO. 473 of 2018)
||TICUALA ISABEL MAGNA SAY-EO
||Hon Chu JA and ST Poon J in Court
|Date of hearing:
||8 March 2021
|Date of Judgment:
||15 March 2021
J U D G M E N T
Hon Chu JA giving the Judgment of the Court:
1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 June 2020 refusing to extend time for her to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 10 September 2015 rejecting her non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 3 March 2017 dismissing her appeal against the Director’s decision.
2. The applicant has consented to the appeal being heard by two judges of the Court of Appeal.
3. The applicant is a national of the Philippines aged 43. She had since 1997 worked in Hong Kong as a domestic helper. Her last employment contract was terminated on 26 August 2006 and she was permitted to remain until 9 September 2006. She overstayed and was arrested by the police on 11 April 2009. On 14 April 2009, she raised a torture claim which was rejected on 19 February 2013. She did not appeal against the decision. On 19 June 2013, she raised a non-refoulement claim.
4. The applicant’s claim is based on fear of being harmed or killed by three moneylenders because she failed to repay the loans from them. Her claim was set out in detail in the Director’s decision at  and the Board’s decision at  to , and summarised by the Judge in  to  of the Form CALL-1.
5. In gist, the applicant claims that she had made three loans to enable her to work as domestic helper in Korea and Hong Kong. Owing to her financial commitments to the family, she did not have enough money from her salary to repay the loans. As a result, the moneylenders had sent death threats while one of the creditors had confiscated her mother’s house after her death as part repayment of the loan. Fearing for her safety, she overstayed in Hong Kong after her employment contract was terminated.
6. By his decision dated 10 September 2015, the Director rejected the applicant’s claim having regard to the persecution risk and BOR 3 risk grounds. No assessment on torture risk ground was made in view of the earlier rejection of the applicant’s torture claim.
7. The applicant appealed the Director’s decision to the Board. The Board heard her appeal at an oral hearing held on 12 August 2016 during which the applicant gave evidence and answered questions from the Board. By its decision dated 3 March 2017, the Board dismissed the appeal. In summary, the Board doubted the applicant’s claim of being pursued by creditors due to failure to repay her loans. The Board further considered that even if her claim is true, the risk of harm would be lowered or negated by the availability of state protection and internal relocation alternatives. The Board concluded that she failed to make out a case for non-refoulement protection.
8. By a further decision dated 19 April 2017, the Director assessed the applicant’s claim on the BOR 2 risk ground and decided against it. The applicant lodged an appeal against the further decision which was heard by the Board at an oral hearing on 15 October 2018. By its decision dated 31 October 2018, the Board dismissed the appeal on the ground that there was no basis for the application of the BOR 2 risk ground.
9. Prior to the Director’s further decision and the Board’s rejection of the second appeal, the applicant had on 23 March 2018 filed a Form 86 to apply for leave to judicially review the first decision of the Director and the Board’s decision of 3 March 2017 dismissing her appeal against it. Other than stating in her supporting affidavit that she disagreed with the Director’s decision and that her dangerous situation had been disregarded, the applicant did not provide any ground for seeking relief in either the Form 86 or her affidavit.
10. The applicant did not request an oral hearing. The Judge dealt with the application on the paper. For reasons set out in  to  of the Form CALL-1, the Judge refused to extend the time for applying judicial review and dismissed the application:
“14. By then she was also late with her Form 86, as Order 53 Rule 4(1) of the High Court Ordinance, Cap. 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.
15. As the last day of the three-month period for the Applicant to file her Form 86 for judicial review of the Board’s First Decision fell on 3 June 2017, she was therefore late by more than 9 months with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai  6 HKC 1; and AW v Director of Immigration  2 HKC 393.
16. In the Applicant’s case, a delay of more than 9 months must be regarded as very substantial or excessive, for which she failed to provide any explanation either in her Form or supporting...