SITI PATIMAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1898/2019

[2024] HKCFI 2876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1898 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 daughter was born in Hong Kong.

2.  The mother and the daughter 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 the 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 27 September 2024 (“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 Court’s decision was sent to the applicants on 27 September 2024 without being returned by the Post Office. They were deemed to receive the Court’s decision.[1]

6.  The deadline for them to file their notice of appeal is 12 October 2024.

7.  In their summons filed on 14 October 2024, the applicants asked for extension of time to file their notice of appeal. In the mother’s affirmation in support of their application, the mother said she did not receive the Court’s decision.

8.  Their application for appeal is late for 2 days only.

Discussion

9.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].

10.  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.

11.  I shall consider the merits of her case.

12.  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].”

13.  The applicants’ claim was based upon the mother’s allegation that if refouled, they would be harmed or even killed by her husband (“Kamandi”) the loan sharks and a Firman Ali. Furthermore, the daughter would also be discriminated because of her mixed ethnicity.

14.  The Director rejected their application for the reason that their claim was not substantiated. They appealed to the Board.

15.  The Board disbelieved the mother’s evidence, and found that she failed to substantiate each of the applicable risks.

16.  The applicants have raised no valid ground to challenge the Board’s finding of the facts.

17.  There is no realistic prospect of success in their intended appeal.

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