RE UNENGSIH

HCAL 243/2019

[2022] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 243 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 remaining without permission 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 28 March 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. The deadline for her to file her notice of appeal is 12 April 2022 (within 14 days after the order)[1]. Since the Court Registry was closed between 7 March to 11 April 2022, such period should not count. The deadline becomes 26 April 2022 (14 days from 12 April 2022).

4.  The applicant filed a summons on 7 June 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said her life would be in danger because of her loan shark.

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. The delay is more than one month. Nevertheless, I shall consider the merits of the case.

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 applicant claimed that if refouled, she would be harmed or killed by her husband and/or her creditor.

10.  The Director found that the level of risk of her being harmed or killed upon refoulement was assessed to be low, state protection would be available to her and internal relocation was a viable alternative. She appealed to the Board.

11.  The Board found that (i) the alleged injuries sustained by the applicant failed to attain the level of severity to fall within the definition of “torture” [86]; (ii) it was purely a monetary dispute without state involvement [87]-[93]; (iii) the extensive review of the country of origin information showed that state protection was available to the applicant [105]-[133] and (iv) internal relocation was a viable option for the applicant [134]-[149]. The references refer to the Board’s Decision.

12.  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.

13.  There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and I dismiss her application.