LORIA FLORDELIZA TAYABAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 846/2021

[2024] HKCFI 1299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 846 OF 2021

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BETWEEN

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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 staying in Hong Kong without permission 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”). 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 Order dated 10 September 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. The deadline for her to file her notice of appeal is 25 September 2021.

4.  In her affirmation filed on 8 December 2021, the applicant said that the Court’s decision is unfair without allowing her to clarify her case and situation in her country. She further said that she was not aware of the time limit for her appeal and she did not receive the Court’s decision. According to the record, the Court’s decision was sent to the applicant’s last known address on 10 September 2021. However, it was returned to us and re-sent to her on 23 September 2021. The letter was again returned to us marked ‘refused’. The court updated her address with Immigration Department and found that it is the same as the last address we sent to. The applicant is deemed to have received the Court’s decision.

5.  This application was misplaced in the court’s storeroom. This is the reason why it is processed long after the applicant’s application.

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 on paper without an oral hearing[1].

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.

8.  The applicant is late for about 2 months. However, I shall consider the merits of her 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’s claim was based upon her allegation that if refouled, she would be harmed by her creditor from whom she had borrowed 300,000 Philippine pesos and she was unable to repay her loan because she was dismissed by her employer in Hong Kong.

11.  Having considered the evidence, the Board did not believe her evidence. It therefore dismissed her appeal.

12.  The applicant has not been able to raise any valid reason to challenge the Board’s Decision. Thus, there is not any realistic prospect of success in her intended appeal.

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