Case Detail

GARDIOLA JEANE LAGAC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

CACV100/2026SINGH NARINDER PAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV10/2022ROBILLOS ADOLFO DE LA CRUZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2021LUU THI VAN v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2023ALMAS KHAWAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2025COLLINS OBI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV104/2019DHALI JONY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV104/2023VU THI NGOC MY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV105/2021DINH THI VAN 對 TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE
CACV107/2023NGUYEN THI THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV107/2025AHMAD AQEEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1081/2025HOANG VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV110/2021AYUB MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV11/2023RUPASINGHA ARACHCHIGE SHIROMA THARANGANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV112/2025NONG THI HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV113/2022SITI MULDIYATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1151/2025ARSHDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2022GALLEGO VALDES AUGUSTO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2024QUIRANTE JACKIELON DE GUZMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2025DINH KHAC KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1153/2025MEGA PUSPITA SARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Files (2)

[2019] HKCFI 718-EN-2019-03-14

GARDIOLA JEANE LAGAC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HTML content

HCAL 952/2017

[2019] HKCFI 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 952 OF 2017

___________________

BETWEEN
	GARDIOLA JEANE LAGAC	Applicant
and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before:

Hon Campbell Moffat J in Chambers

Date of Hearing:	14 March 2019
Date of Decision:	14 March 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 30 January 2019 for extension of time to appeal from my decision of 4 December 2018, refusing leave to extend time to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. That deadline was clearly outlined within the Notes to Applicant on the Call-1. She did not do so. She now requires leave to extend time to appeal against that order. The applicant attended court in person.

Procedural background

2. The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. She entered Hong Kong legally on 18 January 2007 to work as a Foreign Domestic Helper (“FDH”) and overstayed when her FDH contract was terminated. She submitted a non-refoulement claim by way of written representation on 19 June 2015. As a result, on 2 October 2015, the applicant received a Notice to Persons Making a Non-refoulement Claim and was provided with a blank Non-refoulement Claim Form (“NCF”). The applicant had the benefit of a Tagalog interpreter at which time the onerous conditions of the process were explained to her. This included being told that she had 28 days in which to submit the NCF. She was thereafter represented by the Duty Lawyer Service (“DLS”). The date for the submission of the NCF was 20 November 2015. This was reiterated to the DLS by way of letters dated 23 October 2015 and 13 November 2015. On 19 November 2015, the DLS informed the Director of Immigration (“the Director”) that they had received no instructions from the applicant. The Director attempted to contact her on the same day using the contact number the applicant had given but the applicant could not be reached. As a result, the NCF, not having been submitted by 20 November, was deemed withdrawn and the applicant was notified of that withdrawal by letter dated 24 November 2015. Included in that letter were instructions as to what was required in order to re-open the claim.

3. On 25 January 2016, DLS wrote to the Director on her behalf seeking to re-open the claim. The reasons for the original non submission of the NCF were given at that time. They included lack of funds to attend the first interview with the DLS and being unwell so that she could not attend the second interview. This submission was considered on the papers. There was no medical evidence in support. The applicant’s request to re‑open her claim was denied on 27 January 2016. The applicant had not been able to show that her failure to submit the NCF on time was due to circumstances beyond her control. The applicant was informed that she had 14 days to appeal that decision.

4. On 11 February 2016, the applicant lodged a Notice of Appeal with the Torture Claims Appeal Board (“TCAB”) within time. Her appeal was considered on the papers by the Adjudicator, Mr Wesley Wong, who refused it on 12 May 2017, giving reasons. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 November 2017, which was out of time. She did not request an oral hearing. The issue of extension of time to apply for judicial review of the decisions of both the Director and the Adjudicator, was therefore considered as a preliminary point on the papers prior to any consideration of her application for leave to apply for judicial review of the Decisions of both the Director and Adjudicator denying her the opportunity to re-open her claim. Her application for leave to extend time to apply for judicial review was refused on 4 December 2018. She had 14 days from that date to appeal that decision which would have expired on 18 December 2018. By way of summons dated 30 January 2019, she now seeks leave to appeal out of time.

5. An applicant who wishes to appeal against a CFI judge’s refusal to extend time for leave to apply for judicial review, which is an interlocutory order has to observe the time limits for appeal under Order 59, rule 2B which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to extend time to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 15.

6. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for her delay. In her two letters in support of her summons dated 30 January 2019, the applicant claims she did not receive the Order on time and that she found out about the Order when she attended at Shatin Magistrates’ Court on 2 January 2019 on a charge of overstaying. She says she received a copy of the Order on 7 January 2019, when she came to the High Court to obtain one, but still did not manage to issue a summons until 30 January 2019. The applicant maintains that she could not do so until that date because she required a loan from a friend to pay the court fee of $1,045 and had to wait until the end of the month to receive the money. In addition, the applicant asks the court to consider her baby son who was born out of wedlock and about whom her family do not know. She maintains that he is two years of age and his father is an Indian national, who is also a Form 8 holder.

7. In respect of the previous out of time applications, the applicant states that she was incarcerated in Tai Lam Centre for Women on 21 July 2016 for an offence of theft and that there was some confusion about her being able to obtain a Form 86. However, I note that she did not submit her Form 86 until 24 November 2017, by which time she was out of prison and resident at Room A, 2^nd Floor, No 165 Queen’s Road, Sai Ying Pun and must have notified the court of a subsequent address as the Call-1 and Order were sent to Flat A, 5/F, No 1 Third Street, Sai Ying Pun. This is an address at which she currently receives mail and has successfully received mail for these proceedings. There can therefore be no excuse for her not receiving the Call-1 and Order on time.

Conclusion

8. The applicant has now been in Hong Kong since 2007. She has been interacting with various government agencies for the entirety of that period and accepts she received all necessary documents and notifications. She has been receiving mail at the Third Street address for these proceedings and lived at that address when the Call-1 and Order were issued. The explanation she has offered to this court, as to why she did not receive the Order of this court, is not acceptable.

9. In any event, I have considered her underlying application to ensure that there are no matters, which should have been raised and which, because of her tardiness, she has not been able to address. In essence, she came here as an FDH, over stayed, had no job, started an extra-marital affair with her current partner and had a child of that union. She does not want to return to the Philippines because her husband has found out about her affair and has threatened her. That set of facts has no merit in any event. There is no complaint before the court as to the decision of the TCAB or the decision of this court to refuse extension of time. The applicant merely wishes the Court of Appeal to re-consider her current situation because she has not informed her family about her son. Having considered the length of delay, reasons for the delay and underlying merits of her application as well as the background to all of the proceedings, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10. The applicant’s summons dated 30 January 2019 be dismissed.

	(A P Campbell Moffat)
	Judge of the Court of First Instance High Court

The applicant appeared in person.

HCAL 952/2017

[2018] HKCFI 2217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 952 of 2017

BETWEEN

	Gardiola Jeane Lagac	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or
consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Extension of time for leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1. The Applicant entered Hong Kong legally on 18 January 2007 and was allowed to remain upon a Foreign Domestic Worker visa until 12 November 2007. The Applicant’s contract of employment was terminated on 27 October 2007 and she was required to leave by 10 November. On two occasions, the Applicant applied for an extension of stay which was refused. She subsequently overstayed. On 29 March 2015, the Applicant was arrested for an offence of theft. On 9 June 2015, the Applicant was arrested for overstaying. She has been on court bail since that date.

2. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 19 June 2015. As a result, on 2 October 2015, the Applicant received a Notice to Persons Making a Non Refoulement Claim and was provided with a blank Non‑Refoulement Claim Form (“NCF”). The Applicant had the benefit of a Tagalog interpreter when the onerous conditions of the process were explained to her. This included being told that she had 28 days in which to submit the NCF. She was thereafter represented by the Duty Lawyer Service (“DLS’). The date for the submission of the NCF was 20 November 2015. This was reiterated to the DLS by way of letters dated 23 October 2015 and 13 November 2015. On 19 November 2015, the DLS informed the Director of Immigration (“the Director”) that they had received no instructions from the Applicant. The Director attempted to contact her on the same day using the contact number the Applicant had given but the Applicant could not be reached. As a result, the NCF, not having been submitted by 20 November, was deemed withdrawn and the Applicant was notified of that withdrawal by letter dated 24 November 2015. Included in that letter were instructions as to what was required in order to re-open the claim.

3. On 25 January 2016, DLS wrote to the Director seeking to re-open the claim. The reasons for the original non submission of the NCF were given at that time. They included lack of funds to attend the first interview with the DLS and being unwell so that the Applicant could not attend the second interview. This submission was considered on the papers. There was no medical evidence in support. The Applicant’s request to re-open her claim was denied on 27 January 2016. The Applicant had not been able to show that her failure to submit the NCF on time was due to circumstances beyond her control. The Applicant was informed that she had 14 days to appeal that decision.

4. On 11 February 2016, the Applicant lodged a Notice of Appeal within time. Her appeal was considered on the papers by the adjudicator, Mr Wesley Wong, who refused it on 12 May 2017, giving reasons.

5. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 November 2017, which was out of time. She did not request an oral hearing. The issue of extension of time to apply for judicial review of the decisions of both the Director and the Adjudicator, was therefore considered as a preliminary point on the papers prior to any consideration of her application for leave to apply for judicial review of the Decisions of both the Director and Adjudicator denying her the opportunity to re-open her claim.

Form 86 out of time

6. In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 24 November 2017. Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 12 May 2017 and expired on 11 August 2017. The Notice of Decision was sent to the Applicant’s registered address; the same address she relies upon for these proceedings. The Applicant has submitted no explanation for her delay and has not sought leave for an extension of time. I have never the less considered the principles[1] applicable to granting such an extension if an application had been made and those are:

(1)  the length of delay;
(2)  the reasons for delay;
(3)  the prospects of success in the intended appeal; and
(4)  the prejudice to the putative respondent if extension of time were granted.

7. In this case the Applicant was late by 105 days and has not offered any explanation for this delay. This is a surprise, as the Applicant knew that she had to provide reasons for failure to submit her original NCF and was provided with a notice which indicated what she was required to submit for an application for judicial review. In view of the fact that no reasons for her late filing have been given, she must satisfy the court that there are real prospects of success in her intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given. There were no grounds provided for leave to judicially review the decision of the Director and Adjudicator either. The Applicant’s claim is unsubstantiated. There is no basis upon which the court could begin to exercise its discretion.

8. This application is dismissed as being out of time.

Dated 4^th day of December 2018.

(Ms Queenie Mak)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant:

If leave has been granted, the Applicant or his solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

If extension of time has not been granted, the Applicant or his legal representative must:

(a) first apply to this court within 14 days of the date of this order by way of summons for leave to appeal,

(b) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal,

(c) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper,

(d) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions.

Sent to the Applicant on 4/12/2018
Gardiola Jeane Lagac

Applicant’s ref. no:
Nil.

Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4/12/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3103/16/2/69/F199

Director of Immigration
Putative Interested Party’s ref. no.:
L/M (11623) in ImmD RA 7/37/C

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1]Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anr [2016] HKCU 157 (HCMP 3217/2015).

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court;