RE CHUA BERBINA GAVINO

HCAL 2695/2018

[2021] HKCFI 2621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2695 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”). 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 27 May 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 dated 23 August 2021 applying for extension of time to appeal against the Court’s decision.

5.  In her affidavit in support of her application, she said that she did not receive the Court’s decision.

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.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. The Board found that the acts as the applicant alleged did not attain the degree of severity in pain or suffering within the definition of torture [59]; that the state was not involved [63 & 73]; that state protection was available to her [83]; that internal relocation was an option open to her [93]; that there was no evidence to show that she was subjected to BOR 2 risk if she returned to the Philippines [98] and that she was not subjected to Persecution risk [107].

10.  Her reasons in support of her application do not assist her.

11.  The applicant has not raised any viable ground to show either that the Board was in error or that the Court was in error. Therefore, she has no realistic prospect of success in her intended appeal.

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