RE LIBAO AURELIA PAZ BALMELERO

CAMP 91/2020

[2021] HKCA 3

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 91 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 883 of 2018)

________________________

________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 9 November 2020, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to extend the time for the applicant to make a renewed application for leave to appeal the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 November 2019.  By that decision, the Judge refused to give her leave to apply for judicial review.     

2.  On 18 November 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also put in a written submission to support her application.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  In the notice of motion, the applicant gave the following as her reasons for seeking leave to appeal to the Court of Final Appeal:

“I would like to appeal against the Court’s decision on refusing my leave. The Court refused my application just because they think my case has no prospect. By legal principle, I should be granted the right to appeal when the fault is not mine. On top of that, it would be too judgemental of the court to dismiss my case without allowing me to further appeal.”

7.  The written submission set out the following grounds of appeal:

“1. The judgement by the Court of First Instance to reject my request for the extension of time is not fair. I did not intend to skip the hearing. The reason was because my lawyer did not inform me there was supposed to be a hearing.

2. Because the lawyer had made a mistake in my address. And the court also made a spelling mistake on my address that’s why I never received any letter about my hearing and therefore I have never heard any news.

3. My original address is Yen Chow House, No. 219B Yee Kuk street; The lawyer mistakenly wrote Yee Kuk street as Yee Yuk street when submitted my document to the court. And then the court wrote Yem Chow House instead of Yen Chow house when sending documents to me.

4. As this all happens not because of my mistake but the administrative error of my lawyer and the court, I see no reason why my appeal for the extension of time should be rejected.

5. On top of that I was already being detained because I did not even know that my case was finished. The entire mishap was very unfortunate and I believe that my case has not been fairly judged and fairly treated.

6. As a result of the arguments above, I request the court to grant leave to appeal.”       

8.  We are of the view that the points and arguments advanced in the notice of motion and written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Critically, they relate only to the circumstances of the applicant’s case, and do not involve any question of great general or public importance, as required by section 22(1)(b). 

9.  As to the complaint of unfairness arising from mistakes in the spelling of the applicant’s address, it cannot stand.  It is true that in HCAL 883/2018, the applicant’s address was mis-spelt as “Yee Yuk Street” in the notice of change of address signed by her and filed on 8 July 2019.  However, the address was correctly stated as “Yen Chow House, Yee Kuk Street” in the notice of hearing dated 25 July 2019 relating to the hearing for leave to apply for judicial review.  The Form CALL-1 notifying the applicant of the Judge’s decision refusing leave to apply for judicial review was also sent to the correct address (i.e. Yen Chow House, Yee Kuk Street).  Both documents had not been returned by the Post Office. Further, while the applicant’s address in the notice of handing down of the decision on the application for extension of time to appeal was mis-spelt as “Yem Chow House”, the applicant personally collected the decision from the Court.  In these circumstances, the applicant’s contention that she did not receive notice of hearing and had heard nothing about her case is not substantiated.  We also note that in the present application, although the applicant’s address in the Court’s letters dated 29 July and 20 November 2020 containing directions made by the Registrar of Civil Appeals was mis-spelt as “Yee Yuk Street”, the applicant had complied with the directions and filed her written submissions within the time imposed. 

10.  Moreover, as stated in [13] and [14] of our judgment, the primary reason for the Judge’s and this Court’s refusals to extend the time for the applicant to appeal the decision not to give leave to apply for judicial review is the lack of merits in the intended appeal.  The applicant has not provided any proposed ground of appeal or identified any error in the reasons given by the Judge (as stated in the Form CALL-1) for refusing leave to apply for judicial review.  This Court also does not discern any error or ground for disturbing the Judge’s decision.  As such, it would be futile to extend the time for appeal as the intended appeal is bound to fail.   

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person.

CAMP 91/2020

[2020] HKCA 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 91 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO.883 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 22 November 2019, Deputy High Court Judge Bruno Chan (“the Judge”) refused to give leave to the applicant to apply for judicial review. On 29 June 2020, the Judge refused to extend the time for the applicant to appeal his decision of 22 November 2019.[1] By summons filed on 8 July 2020, the applicant applied for leave to appeal against the decision of 29 June 2020. We believe the applicant is in fact seeking an order from this Court to appeal out of time against the decision of 22 November 2019, instead of the decision dated 29 June 2020 as stated on the summons. We have therefore treated the summons as a renewed application for extension of time to appeal against the decision of 22 November 2019.

2.  The applicant had filed an affidavit and also lodged a written submission in support of 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 summons, the affidavit and the written submission filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 25 January 2018 rejecting her non-refoulement claim and the decision of the Torture Claims Appeal Board (“the Board”) given on 3 May 2018 dismissing her appeal against the Director’s decision.

5.  The applicant is a national of the Philippines.  She first came to Hong Kong on 30 April 2008 and was permitted to remain to work as a foreign domestic helper.  She last entered Hong Kong in December 2015 with permission to work as a domestic helper until the end of the contract or two weeks after termination, whichever was earlier.  On 12 February 2017, her employment contract was terminated.  She did not depart and on 28 February 2017 surrendered to the Immigration Department.  She raised a non-refoulement claim based on her fear of being harmed or killed by (1) her cousin due to a money and land dispute between him and the applicant’s father, and (2) her husband because the applicant has developed an intimate relationship with another man in Hong Kong.  The details of the applicant’s claim were set out in the decisions of the Director and the Board and summarised by the Judge in the Form CALL-1 dated 22 November 2019 at [2] to [5].  We will not repeat them.    

6.  By his decision, the Director rejected the applicant’s claim on the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

7.  The applicant’s appeal to the Board was heard and dismissed on 3 May 2018.  In its decision dated 25 May 2018, the Board pointed out that the events described by the applicant did not disclose a real or substantial risk of harm to her, whether from her cousin or her husband. The Board also took the view that family protection and state protection are available to the applicant.  It concluded that the applicant’s case did not come within any of the grounds for affording non-refoulement protection.  

8.  On 21 May 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  As summarised by the Judge in [10] of the Form CALL-1 dated 22 November 2019[6], she raised a total of eight grounds in support of the application.  The application was listed for an oral hearing on 13 August 2019, but the applicant did not attend the hearing.  For the reasons given in [11] to [14] of the Form CALL-1, the Judge considered the intended judicial review had no prospect of success, and refused to grant leave to apply for judicial review. 

9.  The 14-day period[7] for the applicant to appeal the decision of the Judge expired on 6 December 2019. On 11 December 2019, the applicant filed a summons to apply for an extension of time to appeal.  The Judge heard the application at an oral hearing attended by the applicant.  By his decision handed down on 29 June 2020, the Judge refused the application.  On 8 July 2020, the applicant filed the present summons.

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

11.  By the time the applicant filed the summons in the court below for leave to appeal out of time, she was late by five days.  It is not a serious delay.  In the application to the Judge, the applicant explained she did not receive the Judge’s decision and was only informed of the decision by the Immigration Department on 5 December 2019.  In the affidavit in support of the present application and also the written submission, the applicant stated that she had changed her address on 8 July 2019, and her lawyer had informed the court of the change.  However, her lawyer misspelt the name of street.  The applicant thus said that it was the Court’s and her lawyer’s mistake that led to the Judge’s decision not reaching her.

12.  We have checked the court record.  We note that: (1) the applicant came to court on 4 July 2019 and provided an address; (2) the address she gave was the same as the applicant’s address stated in the present summons and the supporting affidavit; (3) the Court had received a letter dated 8 July 2019 from the applicant on which she also gave the same address as her current address; and (4) the Form CALL-1 dated 22 November 2019 was mailed to the address given by the applicant on 4 and 8 July 2019, and it has not been returned by the Post Office. 

13.  In the circumstances, we do not accept the applicant’s claim that the Judge’s decision did not reach her because her lawyer has made a mistake in the spelling of the name of the street, or that the court has made some mistake.  However, like the Judge, we would focus on the prospect of success of her intended appeal, considering that the delay of five days is not significant.     

14.  On the merits of the intended appeal, same as in the application before the Judge, the applicant has not given any proposed grounds of appeal in the present summons, the supporting affidavit or the written submission.  In all three documents, the applicant only focused on explaining why she did not receive the Judge’s decision, while arguing that the refusal to extend time for appeal was unfair and unreasonable. The applicant also claimed that because she had been detained, she did not know her case was finished.     

15.  We had examined the applicant’s grounds in support of her intended judicial review and the Judge’s reasons in refusing to give leave to apply for judicial review.  We do not discern any error or ground for disturbing the Judge’s decision.    

16.  Given that the applicant has not been able to demonstrate that her intended appeal has any prospect of success, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 8 July 2020.