RE HENI WAHYUNINGTIAS

HCAL 905/2019

[2022] HKCFI 1668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 905 OF 2019

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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 way of overstaying 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 4 April 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.

4.  The applicant filed a summons on 11 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 decision in time

6.  According to the record, by letter dated 4 April 2022, the court sent the Court’s decision to her last known address. She is deemed to have received the Court’s decision on 6 April 2022. The deadline for her to file her notice of appeal is 19 April 2022 (14 days after the Order, ie. 5 April 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 weeks, 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 Mr. Irawan, her loan shark.

11.  The Director refused her claim for the reason that it was not substantiated. The Director refused to believe that she would be harmed or killed by the loan shark upon refoulement because (i) the low frequency and severity of the past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation would be a viable option for her [15]. The references refer to the Director’s Decision. She appealed to the Board.

12.  The Board found that (1) the applicant was not inflicted with serious harm; (2) she provided contradictory accounts on the reason of the loan; (3) she only came to Hong Kong to seek employment but not protection; and (4) the late lodge of non-refoulement claim only after she was arrested showed that she had no intention to seek protection [21]. The Board further found that state protection and internal relocation were available to her and it affirmed the Director’s Decision.

13.  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.

14.  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.