RE AKHMETZYANOVA IRINA

HCAL 1409/2021

[2022] HKCFI 184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1409 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 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”) and the Board dismissed her appeal (the “Board’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 21 December 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 5 January 2022 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said “…The decision made by the High Court Judge K.W. Lung has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding 14-days time limit…”

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.

8.  The applicant is only one day late. However, I have to consider whether her intended appeal has any real prospect of success as directed by the Court of Appeal in the case below.

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 applicant claimed that, if refouled, she would be harmed or killed by 2 mafia businessmen named Alexei and Vladislav because they had raped her in 2006 and they wanted her to work for them to seduce businessmen and drug them with rape drugs.

11.  The Director found that the level of risk of her being harmed by Alexei and Vladislav was assessed to be low [16], the reasons being that they had not disturbed her after the rape incident in 2006 [18]; that there was no evidence that the state was involved in the incident [19] and therefore state protection would be available to her [20] and that internal relocation was an option open to her [22]. Her claim on BOR 2 risk was also refused in the Director’s Further Decision for the reason that she failed to establish, by evidence, that her personal right to life would be violated upon her return to Russia [6]. See the Director’s Decision dated 17 February 2015.

12.  The applicant was late in filing her notice of appeal with the Board. The Board, having considered the factors below, refused to extend time for her to file her notice of appeal, in effect, dismissed her appeal:

(i)     the late filing period is more than 5 years;

(ii)    the late filing reasons are vague and in places ambiguous and are not persuasive;

(iii)   the merits of the applicant’s case by reference to the Director’s Decision and the Director’s Further Decision; and

(iv)  the grounds of her appeal.

13.  The Court was satisfied that the Board, in refusing to extend time for the applicant to file her Notices of Appeal with the Board, had duly considered the merits of the applicant’s case and other relevant circumstances in accordance with the directions of the Court of Appeal in Khan Kamal Ahmed [2019] HKCA 377, §§17 & 20. The Board had good reason to turn down her application for late filing of the notice of appeal.

14.  The applicant had appeared before this Court and had the opportunity of making her submissions to the Court.

15.  The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal. Nor has she set out any reasons to show that the Court’s decision was in error. There is no realistic prospect in her intended appeal.

16.  In the circumstances, it is futile to extend time for the applicant to file her notice of appeal.  I refuse to extend time for her appeal. Accordingly, I dismiss her application.