RE BUNQUIN LOWENA RIVERA

HCAL 1415/2018

[2021] HKCFI 3532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1415 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 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”) and the Board dismissed her appeal (the “Board’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 11 November 2020 (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 5 October 2021 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said that she did not receive the Court’s decision within 14 days and she should be given a reasonable opportunity to present her case.

Discussion

6.  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.

7.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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.

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 delay is serious as it is over 10 months. I shall first consider the merit of her intended appeal.

10.  The applicant claimed that, if refouled, she would be harmed or killed by her husband and her younger brother because of the incestuous relationship with her younger brother, which was discovered by her husband. Her husband threatened to disclose the incestuous relationship if she returned to the Philippines. He demanded money from her. Her brother also threatened to disclose the incestuous relationship if she returned to the Philippines.

11.  The Director found that the level of risk of her being harmed or killed by her husband or her younger brother if she returned to the Philippines was assessed to be low; that state protection would be available to her and that internal relocation was an option open to her.

12.  The Board, having considered her evidence, dismissed her appeal and affirmed the Director’s Decision. The Board found that she did not make immediate claim for protection after her arrival in Hong Kong, which impeded her credibility of her evidence. The adjudicator accepted that she was raped by her younger brother and the incestuous was known to her husband. But since her husband had known the matter for 30 years, it was unlikely that he would carry out his threats if she returned to the Philippines. Her younger brother would be unlikely to disclose the incestuous relationship himself as he would be incriminated. In any event, she had state protection and an option of internal relocation if she returned to the Philippines. She therefore failed to establish a genuine and substantial risk of being subjected to torture or CIDTP. See paragraph 8 of the Court’s decision. The Board has the power of finding of the facts of the case. Unless his findings contravene the public law, his findings of the facts are final.

13.  The Court agreed with the Board’s findings after a rigorous examination and anxious scrutiny of the case.

14.  The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal.

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