RE USWATUN KHASANAH

HCAL 2563/2018

[2022] HKCFI 3432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2563 OF 2018

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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 19 September 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 26 October 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application she did not receive the Court’s decision. According to the record, the Court’s decision was sent to her last known address on 19 September 2022.

Discussion

5.  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.

6.  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 3 October 2022. The applicant is late for 23 days. I shall now consider the merits of the case.

7.  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].”

8.  The applicant claimed that, if refouled, she would be harmed or killed by her moneylender.

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

10.  The Board considered that (i) while the moneylender and his men were armed and they visited Siti’s house asking the applicant for repayments, they did not use the weapons but merely pushed the applicant; and (ii) in the second incident, they only grabbed the applicant’s arm without taking further actions. As such, the applicant’s injuries were only minor ones which failed to attain the minimum level of severity [23]. Further, it noted that this was only a private dispute [24]. The Board also considered the country of origin information and found that state protection and internal relocation were both available to the applicant [31]-[32]; [42]-[43]. The references refer to the Board’s Decision.

11.  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.

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