RE LACANLALE TERESITA CRUZ

CAMP 215/2023, [2025] HKCA 1113

On intended 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.  On 15 August 2025, this Court handed down our judgment ([2025] HKCA 746) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 2 September 2021 which refused to give her leave to apply for judicial review.

2.  On 18 August 2025, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  She has also put in a written submission to support the 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 has been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  The notice of motion stated that (i) there has been a failure to consider that the applicant still faces real risk from her enemies; (ii) the applicant was late in her appeal because she did not receive the decision; and (iii) there has been a failure to consider the applicant’s claim under the BOR 2 risk and BOR 3 risk grounds.    

7.  In her written submission, the applicant made the following additional points:

(1)     The Torture Claims Appeal Board (“the Board”) considered the risk of harm was too low.  The fact is she still faces danger in her country, her fear continues and she is seeking protection.    

(2)     The Director of Immigration (“the Director”) and the Board failed to consider and/or give proper weight to relevant considerations and materials, namely (a) they did not follow the high standard of fairness and failed to enquire into her fear and the continuing threat from her enemies, and the country of origin information showed that the authority could not or had no intention to protect her; (b) her claim was based on a true story of her life, and maybe the risk arose from private or personal dispute but it is too risky for her to return to her country.

(3)     The decision makers did not properly consider her fear.  The Court also did not focus on her fear and just confirm the decisions of the Director and the Board.  The Court should consider that it is out of fear that she seeks protection in Hong Kong, and it will be hard for her to survive in her country.

8.  The matters set out in the Notice of Motion and written submission do not afford any basis for granting leave to appeal.   Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. 

9.  Further, for the reasons that we have given in [16] to [18] of our judgment, the matters raised are unarguable.  It is evident from the decisions of the Director and the Board that they had given consideration to the applicant’s evidence and claim.  For the reasons given in its decision, the Board had rejected the applicant’s evidence and found there was no real risk that she would face any of the prescribed form of fear if she returns to the Philippines.  The applicant has provided no grounds or particulars to challenge the Board’s findings.  She has also not been able to establish that the Judge has erred in his decision or reasoning.  In these circumstances, the applicant simply has no evidential or factual basis for asserting that she will face risks of harm if she returns to her home country. 

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

11.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.

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)

____________________

____________________

________________

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.