RE RACIMO MELANIE NARCISO AND ANOTHER

HCAL 2427/2018

[2021] HKCFI 2148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2427 OF 2018

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D E C I S I O N

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The application

1.  The 1^st applicant is the mother of the 2^nd applicant, who was given birth in Hong Kong.  This is their joint application.

2.  The 1^st applicant is an illegal immigrant.  On behalf of herself and her son, she lodged a joint 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 dated 16 October 2018 (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 28 July 2020 (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 applicants filed a summons dated 11 September 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been able to be dealt with within the usual time.

6.  In the 1^st applicant’s affidavit in support of their joint application, she said that she and her son are unhappy about the Court’s decision because it would be dangerous for them to return to the Philippines.  Her son was born in Hong Kong and he only speaks Cantonese and English.  He is also studying in Hong Kong.

Discussion

7.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the 1^st applicant’s reason, 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 had considered the applicants’ evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it did not accept the first applicant’s facts in support of their application, such as the partner was married to a woman called Susan and that Susan had harassed her throughout the period she claimed.  See paragraphs 53 to 65 of the Board’s Decision.  As to the second applicant, the Board had considered submissions of his legal representative and his school principal’s recommendations.  Whilst the Board was sympathetic with the second applicant, it did not accept that the language problem, having to fit in a strange environment, stress, unease, loneliness and apprehension might amount to the proscribed harm [72].  See paragraphs 66-80 of the Board’s Decision.

11.  Those reasons in support of their application had been considered and determined by the Board.  The applicants have not been able to say in what respect had the Board erred in its Decision.

12.  The applicants fail to show that they have any reasonable prospect of success in their intended appeal.

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