RE ELAWATI

HCAL 679/2019

[2022] HKCFI 2843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 679 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 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 8 July 2022 (“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 6 September 2022 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said that she did not agree with the Court’s decision and she did not receive the Court’s decision in time.

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 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 applicant claimed that, if refouled, she would be harmed or killed by her stepfather, her fiancé Suyatno, and Suyatno’s father.

10.  The Director refused her application because her claim was unsubstantiated. She appealed to the Board.

11.  The Board had heard her evidence and found that the applicant was not a witness of truth [44]. In particular, the applicant was inconsistent as to who was the creditor [45]. She gave little details as to the loan [46]. She also gave vague accounts about her engagement with Suyatno [47]. Further, she was inconsistent about the threatening phone calls made by her stepfather and her fiancé [48]. In addition, the Board was not persuaded by the applicant’s claim in relation to her sexual orientation as she was unable to describe how discovering she was a lesbian affected her, which, coupled with other evidence such as there being no photographs of her with her partner and that she was unable to tell the adjudicator how their friendship developed into intimacy, rendered her evidence not believable [51 & 52]. The references refer to the Board’s Decision.

12.  The applicant said that she did not receive the Court’s decision. According to the court’s record, the Court’s decision was sent to the applicant on 8 July 2022 by ordinary post at her last known address and it was not returned.

13.  The applicant has 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 her intended appeal.

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