RE SURYANINGSIH AND ANOTHER

HCAL 1052/2019

[2022] HKCFI 2844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1052 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, who was born in Hong Kong on 23 May 2014, a minor in this case. This is their joint application.

2.  The applicants are illegal immigrants by staying in Hong Kong without permission and they lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered their evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

3.  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.

4.  By Order dated 16 June 2022 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

5.  The 1^st applicant filed a summons dated 16 August 2022 applying for extension of time to appeal against the Court’s decision.

6.  In her affirmation in support of their application, the 1^st applicant said that she did not receive the Court’s decision. According to the court’s record, the Court’s decision was sent to the applicants at their last known address on 16 June 2022 and there is no return from the post office.

Discussion

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

8.  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 delay is over two months and is serious. I shall first consider the merits of the case.

9.  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].”

10.  The 1^st applicant claimed that, if refouled, she and the 2^nd applicant would be harmed or killed by Mr. Sarmin, the creditor due to default in repayment of loan. Besides, she would also be expelled, harmed or killed by her family because the 2nd applicant was born out of wedlock.

11.  The Director refused their application because their claim was unsubstantiated. They appealed to the Board.

12.  The Board had heard the 1^st applicant’s evidence and found that:

(1) the inconsistencies and changes in the 1^st applicant’s evidence cast serious doubts on her credibility in relation to the loan [48];

(2) the 1^st applicant was not a credible witness and the adjudicator found that she had fabricated and concocted her evidence to advance a claim for non-refoulement protection;

(3) the 1^st Applicant’s parents had shown a willingness to accept her and the 2^nd applicant and she said that she would like to go home;

(4) the 1^st applicant had reconciled with her family and her daughter, the 2^nd applicant, was no longer an issue [54].

The references refer to the Board’s Decision.

13.  The applicants have not been able to say in what respect had the Board erred in its Decision or this Court had committed any error in the assessment of the case. There is, therefore, no realistic prospect of success in their intended appeal.

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