RE SRI LESTARI

HCAL 2785/2018

[2021] HKCFI 2627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2785 OF 2018

____________________

____________________

____________________

D E C I S I O N

____________________

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”).  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 12 May 2021 (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 22 June 2021 applying for extension of time to appeal against the Court’s decision. 

5.  In her letter in support of her application, she said that she did not receive the Court’s decision, which might have been disposed of by someone else.

6.  The Court had given directions that the applicant should submit documentary evidence to show the service of the Court’s decision and her grounds of appeal.  The matter will, however, proceed even if the applicant does not provide the information as required.  The applicant has submitted the information as required.  I shall now consider her application.

Discussion

7.  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.

8.  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.

9.  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].”

10.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  The Board found that there were significant inconsistencies and gaps in her evidence.  She did not seek protection immediately upon her arrival but only did so 2 years after she had come to Hong Kong, which put in doubt her evidence that she came to Hong Kong for protection. The Board finally found that there was no factual basis to support her claim for non-refoulement protection under any of the grounds. 

11.  Her reason in support of her application does not assist her. 

12.  The applicant has not raised any viable ground to show that either the Board was in error or the Court was in error.  Therefore, she has no realistic prospect of success in her intended appeal.

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