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| The CA says allowing applications filed way beyond the deadline could lead to abuse |
A Filipina former domestic helper and her seven-year-old daughter who had previously decided to abandon their non-refoulement application, failed to get the High Court to reopen their case.
In a judgement handed down Monday, Appeal Court justices Aarif Barma and Carlye Chu upheld the lower court’s decision to deny the applicants’ bid for a judicial review, as it was filed way beyond the deadline.
Applicants Reggie Cayanan Villanueva, 41, and her daughter, Gienish, had sought to get Judge Bruno Chan to allow them to challenge the Torture Claims Adjudication Board’s decision not to reopen their case as it was filed way out of time.
The two had earlier applied to abandon their resistance to being sent back to the Philippines, and after it was approved, changed their mind and asked the TCAB to restore their original non-refoulement claim.
But in doing so, they failed to make the application in time, and the CA said allowing them to pursue the case despite the time lapse could lead to abuse.
Villanueva, 41, who is married with two children in the Philippines, last arrived in Hong Kong to work as a foreign domestic helper on Aug. 23, 2014.
Shortly thereafter, she had an affair with an Indian man in Hong Kong, and got pregnant. She gave birth to Gienish on Aug. 5, 2015.
On Nov. 30, 2015 her contract was terminated but she did not go home within the mandatory 14 days. About four months later, or on Mar 15, 2016, she surrendered to authorities.
On Oct 5 of the same year she applied for non-refoulement, saying her husband would kill her and her daughter if they returned to the Philippines.
The Director of Immigration denied their application on Apr 27, 2017, saying there was just a low risk of mother and daughter coming to harm in the Philippines.
On May 10 of the same year, the applicants went to the TCAB to appeal against the Director’s decision.
But 10 months later, or on Mar 5, 2018,Villanueva wrote to both the Director and the Board, requesting to withdraw their appeal, stating that:
“…We want to go
back to our home country Philippines since it is safe for us to go back. I want
to withdraw our non-refoulement claim appeal as soon as possible so that we can
go back. I have no money to buy air ticket. Please arrange as soon as
possible.”
The Board promptly replied by letter dated Mar 13,
2018, informing the applicants that they had a week to reconsider their
application. But once accepted their appeal would be dismissed.
As the
applicants did not respond to the letter the Board informed them on Mar 21,
2018 that their request to withdraw their appeal was accepted.
However,
on Apr 4, 2018, Villanueva wrote to the Board, saying she and her daughter
wanted to reopen their appeal as her husband got angry on hearing of their plan
to return to the Philippines.
The Board
rejected the request on Apr 19, 2018, saying their appeal had already been
disposed of, and that this action was final.
Villanueva’s
subsequent application for leave to challenge this decision was also rejected by
Judge Chan on the ground that the Board had become “functus officio” (or no
longer in office) as soon as it decided to close the file on their case.
Again,
Villanueva failed to appeal against this decision on time.
On Nov. 23,
2020, or seven weeks after the required 14-day period for appeal had lapsed,
she filed for an extension of time, saying she did not know how to make the
application and had no money to do so.
Judge Chan
heard the application on Apr 20, 2021, and on May 4 of the same year, refused
it.
In
upholding his decision, the CA said: “Had it been otherwise, not only would there be no
finality in the determination of such claims, it could also lead to abuse by
claimants who are desirous of delaying their removal from Hong Kong by making
last minute withdrawals and then applying to reinstate or reopen the appeals…”
The appeal court added the judge was right in finding
that the intended judicial review by both applicants has no reasonable prospect
of success.
