RE MUKHAYATI

HCAL 149/2022

[2022] HKCFI 2132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 149 OF 2022

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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 remaining in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 Form CALL-1 dated 2 June 2022 (the “Court’s decision”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended judicial review. The deadline for her to file her notice of appeal is within 14 days after such order[1].

4.  The applicant filed a summons on 30 June 2022 for appeal against the Court’s decision out of time.

5.  In her summons, she said she does not agree to the Court’s decision.

Discussion

6.  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.

7.  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. I shall 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 ex-husband Sumadi.

10.  The Director found that her claim was not substantiated. She appealed to the Board.

11.  The Board noticed that the basis of the applicant’s non-refoulement claim was on the risk of harm from her ex-husband.  Nevertheless, in her notice of appeal/petition, the applicant further added that she feared to live alone in Indonesia as she had no means [43]-[44].  The Board found that there was no consistent pattern of gross, flagrant or mass violations of human rights in Indonesia and thus there was no evidence suggesting that the applicant would face the proscribed harm just by living alone in her home country [45].

12.  Insofar as the fear from Sumadi was concerned, the Board accepted the evidence on her marriage and Sumadi’s subsequent unfaithful and threatening behaviors [47].  However, the Board noted that, on the applicant’s evidence, Sumadi had never physically assaulted her nor had she ever witnessed him assaulting anyone else [49].  It therefore found that the applicant’s claimed fear was mere speculation and, as time lapsed, Sumadi’s conducts suggested that he had little interest in the applicant [50]-[51].  Further, the Board also concluded that the country of origin information did not support the applicant’s assertion that she would face any violence given her vulnerabilities in her home country [52]-[59]. As a result, none of the applicant’s claims were substantiated. The references refer to the Board’s Decision.

13.  The applicant has no valid ground to challenge the Board’s Decision. Nor can she point out any error on the part of this Court in the assessment of her application.

14.  There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and I dismiss her application.