RE SUKIYAH

HCAL 2546/2018 and
HCAL 3356/2019
(consolidated)

[2021] HKCFI 868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS 2546 OF 2018  AND 3356 OF 2019

(CONSOLIDATED)

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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 as she overstayed in Hong Kong. She lodged a non-refoulement claim with the Director of Immigration (“the Director”). By Notice of Decision dated 2 September 2016 (“the Director’s Decision”), the Director rejected her application on the Torture risk, BOR 3 risk and Persecution risk. By Notice of Further Decision dated 9 January 2017 (“the Director’s Further Decision”), the Director rejected her claim on BOR 2 risk.

2.  She appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s Decision. However, she was out of time. The Board, having considered her explanation and the factual basis of her case. It found no special circumstances that would justify granting her extension of time to file her Notice of Appeal. By its Decision dated 1 November 2016 (“the Board’s 2016 Decision”), it declined extending time for her to file her Notice of Appeal. In effect, her appeal failed.

3.  She also appealed to the Board against the Director’s Further Decision. Having considered the evidence, the Board by its Decision dated 6 September 2019 (“the Board’s 2019 Decision”), rejected her appeal and affirmed the Director’s Further Decision. The Board found that she had invented the story in order to advance her non-refoulement claim. She has no factual basis in support of her non-refoulement claim application.

4.  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 2019 Decision. She did not appear before the Court and her application was dealt with on paper. By Order dated 11 August 2020 (“the Court’s decision”), the Court refused to grant her leave to apply for judicial review of the Board’s 2019 Decision for the reason that there was no reasonable prospect of success in her intended judicial review.

5.  The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, she is out of time under Order 53, rule 3(4) of the RHC. She filed a summons on 20 January 2021 for extension of time for her appeal.

6.  She sets out her grounds in support of this application that the Court’s decision was incorrect and she wanted to challenge it.

Discussion

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

8.  In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant her leave to apply for judicial review. [23]

9.  The Court had considered the Board’s 2016 Decision and the Board’s 2019 Decision and, in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s 2019 Decision.

10.  The Board found that the applicant’s evidence was not acceptable. There were inconsistences in her evidence and that she had invented her evidence in the hope of strengthening her non-refoulement claim.

11.  The applicant did not specify any ground in support of her application.

12.  The Court had considered the Board’s 2019 Decision and found that it was without fault.

13.  Her grounds for this application are not valid.

14.  In the circumstances, I find that the applicant is unable to show that she has any reasonable prospect of success in her intended appeal against the Court’s decision. I refuse to extend time for her appeal. Accordingly, I dismiss her application.