RE HANGILI GEDARA IMALKA PRIYADARSHANIE

HCAL 935/2019

[2022] HKCFI 2469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 935 OF 2019

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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 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 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 7 June 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 dated 28 July 2022 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said that the court dismissed her application because she did not submit documents to the court in time.

Discussion

6.  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.

7.  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.  I shall first consider the merits of the case.

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 applicant claimed that, if refouled, she would be harmed or killed by (i) underground gangsters whom the applicant’s 1^st ex-husband had offended; (ii) her 1st ex-husband; (iii) her 2^nd ex-husband; (iv) her abandoned son; (v) the Buddhists in Sri Lanka.  Her daughter’s claim relied entirely on hers.

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

11.  The Board considered the applicant’s evidence. The Board refused to accept that Ranjith was connected with the underground gangsters or that the applicant’s 1^st ex-husband was involved in Ranjith’s alleged death. It also made no sense that the applicant could not locate her 1^st ex-husband after the alleged incidents but her sister could when she filed the divorce paper.  Further, while the applicant submitted court documents about the prosecution of her 2^nd ex-husband, the case result showed that the magistrate disbelieved her evidence.  The applicant’s assertion that her 2^nd ex-husband was influential back home was inconsistent with her statement that her 2^nd ex-husband had been working in Hong Kong for over 12 years.  Besides, her claimed fear of harm from the Buddhists and her son were vague and inherently implausible [63].  As a result, the Board found the applicant to be an untruthful witness. The references refer to the Board’s Decision.

12.  The applicant has not been able to say in what respect had the Board erred in its Decision.

13.  Her ground in support of this application is not valid ground as the Court did not rule that her application was not accepted because she failed to submit documents to the Court.

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