RE WATI

HCAL 2835/2018

[2021] HKCFI 3678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 2835 OF 2018

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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 rejected her application and she appealed to the Torture Claims Appeal Board (the “Board”) and the Board dismissed her appeal (the “Board’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 5 October 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.

4.  The applicant filed a summons on 20 October 2021 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 is only one day late for her appeal.

Discussion

6.  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. 

7.  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.

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.  I agree that the applicant is only one day late for her appeal and there should be no prejudice to the Director if extension of time is granted to her.  However, I still have to consider the prospect of success of the intended appeal.

10.  The applicant claimed that, if refouled, she would be harmed or killed by her husband who was an abuser of domestic violence because of her extramarital affairs and her failure to pay the debt borrowed by him.

11.  The Director found that the level of risk of her being harmed or killed by her husband if she returned to Indonesia was assessed to be low [13]; that state protection would be available to her [19] and that internal relocation was an option open to her [21].  See the Director’s Decision.

12.  The Board, having considered her evidence, dismissed her appeal and affirmed the Director’s Decision.  The adjudicator had extensive cross-examination and consideration of her evidence and found that part of her evidence was acceptable, but some was not.  There were inconsistencies in her accounts given to the immigration officer and to the Board [55]. The Board did not find the account of her husband’s violence credible [59]. The Board concluded that there was no real risk that she would be killed or otherwise harmed by her husband if she returned to Indonesia [62]. Internal relocation was also found to be an option open to her [69]. See the Board’s Decision.

13.  The applicant has not raised any viable ground to show that she has any 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.