RE ESPELITA JHOANNIE JEAN AND ANOTHER

HCAL 2699/2018

[2022] HKCFI 2890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2699 OF 2018

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D E C I S I O N

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The application

1.  The applicants are mother and daughter. They are illegal immigrants by staying in Hong Kong without permission. They lodged a 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 (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

2.  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. 

3.  By Order dated 2 November 2021 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

4.  The applicants filed a summons on 7 September 2022 applying for extension of time to appeal against the Court’s decision.

5.  In the 1^st applicant’s affirmation in support of their application, she said that she did not receive the Court’s decision because she changed her address and contact number.

Discussion

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

7.  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 delay is over one month. I shall first 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 1^st applicant claimed that, if refouled, she and her daughter would be harmed or killed by her former live-in partner, called Kim.  She also feared the political instability in the city where she lived.

10.  The Director refused their application because their claim was unsubstantiated.  They appealed to the Board. 

11.  The Board had heard the 1^st applicant’s evidence and found that:

(1) for the reasons stated in §34, the applicant’s evidence was contradictory and not reliable;

(2) it did not accept that Kim would kill her and her daughter [26] & [27];

(3) it did not accept that the political instability would cause danger to her or her daughter as her family are still residing there and safe [29];

(4) it would be unreasonable for the applicant to demand guarantee of her and her daughter’s safety from her own government [30];

(5) that the submission of terrorist was just a bare allegation and a mere speculation that it might affect the applicant daughter [33]; and

(6) the applicants had not made out a case in respect of each of the 4 grounds for their claim [36].

The references refer to the Board’s Decision.

12.  According to the court’s record, the Court’s decision was sent to the applicant on 2 November 2021 by ordinary post at their last known address and it was not returned.

13.  The applicants have not been able to say in what respect had the Board erred in its Decision or this Court had committed any error in the assessment of the case. There is, therefore, no realistic prospect of success in their intended appeal.

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