COME ERLYN EBENA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 328/2019

[2023] HKCFI 1220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 328 OF 2019

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BETWEEN

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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 7 March 2023 (“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.  In her affidavit filed on 25 April 2023, the applicant said that she did not receive the Court’s decision. According to the record, the Court’s decision was sent to her last known address on 7 March 2023 and re-sent to her updated address on 28 March 2023, which was returned on 4 April 2023. An updated enquiry of the Immigration Department revealed that the applicant’s updated address is the same as her last known address, to which the Court’s decision was sent and returned. Pursuant to Order 65, rules 5 (2)(b) and 7(2) of the RHC, it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday. The applicant is therefore deemed to have received the Court’s decision.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.

6.  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 deadline for her appeal is 22 March 2023. The applicant is late for one month. I shall consider the merits of her case.

7.  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].”

8.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark because she was unable to repay the loan.

9.  The Director of Immigration refused her application for the reason that her claim was not substantiated. She appealed to the Board.

10.  Having considered the evidence, the Board found that the applicant’s evidence was not reliable and that state protection would be available to her and internal relocation was a viable option. The Board dismissed her appeal.

11.  The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is not any realistic prospect of success in her intended appeal.

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