RE SISNORIO MICHELE SOL

HCAL 2293/2018

[2023] HKCFI 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2293 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 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 27 September 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 3 January 2023 applying for extension of time to appeal against the Court’s decision. In her affidavit in support of her application she did not state any reason for her delay.

Discussion

5.  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.

6.  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 deadline for her appeal is 12 October 2022. The applicant is late for about 3 months. I shall now consider the merits of her case.

7.  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].”

8.  The applicant claimed that, if refouled, she would be harmed or killed by her husband Sisnorio, Jose Neri Molina and her sister-in-law, Nelly Sisnorio.

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

10.  Having considered the evidence, the Board gave the applicant benefit of the doubt and accepted that she was a victim of domestic violence.  The Board also accepted that she was subjected to the physical harms but was never injured as she was able to escape.  It also accepted that the applicant was threatened that she would never meet her children due to her affair in Hong Kong.

11.  Nevertheless, the Board found that the ill-treatments did not attain a minimum level of severity; that it was private dispute without state involvement, and that state protection was available to her.  On these premises, the Board rejected her claim on the ground of Torture risk.  In light of the same reasons, and the finding of the availability of internal relocation, the Board also rejected the applicant’s claim on the remaining grounds.  The applicant’s appeal was therefore dismissed.

12.  The applicant has not been able to raise any valid reason to show that she has a 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.