TONKED VILAIWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 370/2022

[2023] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 370 OF 2022

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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 (“the Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the 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.  By Order dated 4 August 2022 (“the Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4.  The applicant filed a summons on 6 March 2023 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application, she said that the Court’s decision is unfair as she was not informed of the date of hearing and she was not given the opportunity of clarifying her case.

5.  According to the court’s record, the notice of hearing was sent to her last known address as supplied by the Immigration Department on 11 July 2022, informing her that the hearing day was on 18 July 2022. The letter was not returned by the Post Office.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

7.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3)  in considering if extension of time should be extended: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The deadline for her appeal is 19 August 2022. The applicant is late for more than 6 months. I shall, nevertheless, consider the merits of her case.

8.  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].”

9.  The applicant claimed that, if refouled, she would be harmed or killed by her ex-husband Charoensuk Sanae as she had a new boyfriend in Hong Kong.

10.  The Director refused her application because her claim was unsubstantiated. She appealed to the Board.

11.  Having considered the evidence, the Board found that she would not be subjected to any real risk of harm or death if she returned to her country and that state protection and internal relocation were available to her. The applicant’s appeal was therefore dismissed.

12.  The applicant has not been able to raise any valid reason to show that she has a realistic prospect of success in her intended appeal.

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