RE DELA LUNA MERLE LUARCA

HCAL 1824/2018

[2021] HKCFI 2072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1824 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 10 July 2020 (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 11 September 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been able to be dealt with within the usual time.

5.  In her affirmation in support of her application, she said that she did not agree with the Court’s decision without explaining why she was late.

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.  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 Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that she was not telling the truth about the loan or what she was doing in the 10 years she overstayed in Hong Kong [19]; that she failed to establish her claim [42]; that state protection would be available to her [51] and finally, that internal relocation was an option open to her [54].  The references are those in the Board’s Decision.

9.  The applicant has not been able to say in what respect had the Board erred in its Decision.

10.  Her ground in support of this application is not valid to show that she has any reasonable prospect of success in her intended appeal.

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