MADIAM MARIEGRACE MAUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1841/2019

[2025] HKCFI 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1841 OF 2019

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BETWEEN

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“Director”). The Director rejected her application (“Director’s Decision) and she appealed to the Torture Claims Appeal Board (“Board”). Having considered her evidence, the Board, by its decision dated 6 May 2019 (“Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  The applicant failed to attend the court hearing scheduled for 5 September 2024. The Court proceeded to deal with her application for leave for judicial review according to the papers already placed before the Court.

4.  By an order dated 19 September 2024 (“Order”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

5.  The applicant by a summons issued on 11 November 2024 (“Summons”) seeks extension of time to appeal against the Order, as the 14-day period for her to file her appeal under Order 53 Rule 3(4) of the RHC ended on 3 October 2024, and hence she was 39 days late with her intended appeal.

6.  In her supporting affirmation filed on 11 November 2024 (“Affirmation”), the applicant only stated that: “I crave leave to Appeal out of time as I didn’t receive the order and judgment within 14 days. I should be given an [sic] reasonable opportunity to resent [sic] my case.” She then produced the Order and the Court’s judgment of the same date as exhibits.

Discussion

7.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

8.  The applicant again failed to attend the hearing of the Summons scheduled for 18 December 2024 despite a notice of hearing dated 28 November 2024 having been sent to her address stated on the Affirmation and not returned. I proceeded with her application according to the papers already placed before the Court.

9.  The applicant did not provide any explanation in the Summons or the Affirmation for not receiving the Order within 14 days of its issuance nor when and how did she actually receive the Order.

10.  In the applicant’s case, a delay of 39 days is substantial and inordinate in view of the statutory period allowed under the RHC is 14 days. More importantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the Board’s Decision or why it may reasonably be argued that the Board’s decision was unfair or unreasonable either in the Summons or in the Affirmation.

11.  The applicant had not attended any of the court hearings for her case and had not stated any proper ground for her intended judicial review in any of her affirmations filed herein.

12.  In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision being clearly and properly identified by the applicant, I do not see any prospect of success in her intended appeal.

13.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

14.  The applicant’s claim was based upon her allegation that if refouled, she would be harmed or ill-treated by her husband because of her extra-marital affairs with another man in Hong Kong.

15.  Having considered the evidence, the Board did not accept the applicant’s evidence as it found that she was not a witness of truth. It dismissed her appeal on that basis.

16.  The applicant is not able to raise any valid reason to challenge the Board’s Decision. Thus, there is not any realistic prospect of success in her intended appeal.

17.  In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.