RE YUYUN AND ANOTHER

HCAL 2781/2018

[2022] HKCFI 1524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2781 OF 2018

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D E C I S I O N

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The application

1.  The 1^st applicant is an illegal immigrant and she and her son, the 2^nd applicant, lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected their joint application and they appealed to the Torture Claims Appeal Board (the “Board”). Having considered the evidence, the Board, by its Decision (the “Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the 1^st applicant, on behalf of herself and her son, filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 2 March 2022 (the “Court’s decision”), the Court dismissed their application for the reason that there is no realistic prospect of success in their intended judicial review.

4.  The 1^st applicant, on behalf of herself and her son, filed a summons on 21 April 2022 for appeal against the Court’s decision out of time. The deadline for them to file their notice of appeal is 17 March 2022 (14 days after the date of the Court’s decision)[1].

5.  In her affirmation in support of her application, the 1^st applicant said she could not appeal because of corona virus.

Discussion

6.  Pursuant to Order 32, rule 11 and 11A of the RHC[2], 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. 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 applicants’ case relies on the 1^st applicant’s facts.

10.  The 1^st applicant claimed that if refouled, she would be harmed or killed by her stepfather due to family disputes.

11.  The Director rejected her claim for the reason that it was not substantiated. The Director found that the level of risk of harm from the applicant’s stepfather upon refoulement was assessed to be low; that the level of risk of her being subjected to harm was lowered or negated as reasonable state protection was available to them; and that the internal relocation was an option open to her.

12.  The applicants appealed the Director’s Decision to the Board. The Board found that there were no substantial grounds for believing that there would be real risk of harm of the 1^st applicant being harmed or killed by her stepfather.

13.  The applicants are unable to set out any valid ground to challenge the Board’s Decision. Nor can they point out any error on the part of this Court in the assessment of their application.

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