RE IKE CANDRAWATI

HCAL 1509/2021

[2022] HKCFI 1554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1509 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, 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 29 December 2021 (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.

4.  The applicant filed a summons on 3 May 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said she was late because she did not get the court’s letter.

6.  According to the record, the applicant had changed her address. By a letter dated 19 January 2022, the Director supplied the Court with her new address, which should be her last known address. By letter dated 20 January 2022, the court sent the Court’s decision to her last known address. She is deemed to have received the Court’s decision on the second working day[1], which is 22 January 2022, a Saturday, which cannot be counted by virtue of Order 3, rule 4 of the RHC. She is therefore deemed to have received the Court’s decision on 24 January 2022 (Monday). The deadline for her appeal is on 7 February 2022.

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. The delay is about 3 months, which is significant. Nevertheless, I shall consider the merits of the case.

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 her husband.

11.  The Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed by her husband was assessed to be low [11]-[12]; that state protection would be available to her [13] and that internal relocation was an option open to her [14]. The references refer to the Director’s Decision. She appealed to the Board.

12.  The applicant’s filing of the notice of appeal with the Board was late. As the applicant’s notice of petition/appeal was filed after 1 August 2021, the Board concluded that the newly amended statutory provisions of the Immigration Ordinance, Cap.115 (“IO”) applied [2]-[3];[19]-[20]. Thus, the amendments would take effect when the Board considered the applicant’s late filing. According to s.37ZT of the newly amended IO, the Board interpreted it as removing the need for the Board to consider the merits of the applicant’s claim when deciding whether to exercise discretion to extend time [25]-[30]. The Board focused on the applicant’s explanation for delay and found that (1) the Director’s Decision was properly served on the applicant on 29 December 2018 and that she had ample time to file her appeal on or before 12 January 2019 [32] and that (2) her explanation of moving house and losing all her documents was unacceptable [31]-[37]. As a result, the Board concluded that the applicant failed to exercise due diligence in filing her notice of appeal and there was no circumstance beyond her control which would render her lateness inevitable [38].

13.  Also, the Board in its decision attached an Appendix II that, should the Board be wrong in concluding that the Board did not have to assess the merits of the applicant’s claim, it found that the applicant had not made out her appeal against the Director’s Decision as there was no viable ground to challenge the Director’s findings on the state protection and internal relocation alternatives. Thus, the Board refused to allow the applicant’s late filing.

14.  In her application for leave to apply for judicial review of the Board’s Decision, I had considered the merit of her case and I was satisfied that the Board, in refusing to extend time for the applicant to file her Notices of Appeal with the Board, had duly consider 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 references refer to the Board’s Decision.

15.  I therefore found that there is no merit in her application for judicial review of the Board’s Decision.

16.  The applicant is unable to set out any 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.

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