CALUZA MARIA LOURDES GALANG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 819/2019

[2024] HKCFI 2092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 819 of 2019

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D E C I S I O N

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The application

1.  The applicants are mother and daughter. The mother is an illegal immigrant by staying in Hong Kong without permission. The daughter was born in Hong Kong. On behalf of herself and her daughter, the mother lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their applications and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeals and affirmed the Director’s Decision.

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

3.  By Order dated 23 August 2023 (“the Court’s decision”), the Court dismissed their joint application for the reason that there was no realistic prospect of success in their intended application.

4.  The Court’s decision was sent to the applicant on 23 August 2023 without being returned by the Post Office. They were deemed to receive the Court’s decision.[1]

5.  The deadline for them to file their notice of appeal is 6 September 2023.

6.  In her summon filed on 25 June 2024, the 1^st applicant asked for extension of time to file her notice of appeal. In her affidavit in support of her application, the applicant said she and her daughter are not satisfied with the Court’s decision and they want to appeal out of time. The mother did not state any reason for the delay.

7.  Their application for appeal is late for more than 9 months.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicants’ reason, I decide to determine this application on paper without an oral hearing[2].

9.  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.

10.  I shall consider the merits of their case.

11.  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].”

12.  The daughter’s claim relies on her mother’s facts. The mother’s claim was based upon her allegation that, upon refoulement, she and the 2^nd applicant would be harmed or killed by her husband.

13.  Having considered the applicants’ evidence, the Board found that the mother’s evidence was not credible. It further found that state protection would be available to her and internal relocation was a viable option for her and her daughter. The Board therefore dismissed their appeal.

14.  The applicant has raised no valid ground to challenge the Board’s decision. Thus, there is not any realistic prospect of success in their intended joint appeal.

15.  In the circumstances, I refuse to extend time for their joint appeal. Accordingly, I dismiss their application.