RE PHAKDEE JATUPAT

HCAL 1534/2021

[2022] HKCFI 3000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1534 OF 2021

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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 15 March 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 9 September 2022 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she has not raised any specific ground.

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. The delay is over one month. 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 her boyfriend Veerayuth Hunngam (“VH”).

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

11.  The Board had heard her evidence. The Board accepted the majority aspects of the applicant’s claim, such as her relationship with VH in 2019 and the fact that the applicant knew very little about him other than his profession as a driver in the same resort [42]. It also gave the applicant the benefit of doubt that VH had once contacted her through Facebook messages and threatened her while she was in Hong Kong [43]. In relation to the assaults from VH prior to her departure for Hong Kong, the Board accepted the possibility that there was a pattern of abusive conducts from VH which was escalated on 6 March 2020 [44].

12.  Nevertheless, on the applicant’s own evidence, the Board found that VH was generally not a violent and dangerous man and that the assaults against the applicant were out of character due to the termination of his employment [45]- [47]. Further, considering the police’s decision to release VH and the applicant’s claimed unawareness of any further violent acts from VH, the Board found that any imminent or foreseeable risk of harm upon the applicant’s return was unlikely to occur [47]. In any event, the Board concluded that state protection and internal relocation to Bangkok were both available to the applicant [48]-[65]. The references refer to the Board’s Decision. Thus, the Board rejected the applicant’s claim and dismissed her appeal.

13.  The applicant has 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 her intended appeal.

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