RE SITI AISYAH TOSIR

HCAL 1045/2019

[2022] HKCFI 2334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1045 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 remaining in Hong Kong 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 23 June 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 within 14 days after the Court’s decision[1].

4.  The applicant filed a summons on 18 July 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said she did not get the Court’s decision. According to the record, the Court’s decision was sent to her last known address on 23 June 2022.

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. 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 (i) her husband, Masdi because she divorced him; and (ii) the debt collector because she failed to repay the debt borrowed by Masdi.

10.  The Director found that her claim was not substantiated. She appealed to the Board.

11.  Before the Board, the applicant elected not to give evidence. The Board then proceeded to assess her evidence on the materials available to it. There was hearsay evidence, which could not be relied upon for the facts. In any event, the Board accepted that she had been subjected to domestic violence whilst she was in Indonesia by her husband. On the totality of her evidence, the Board was not persuaded that she would face a real risk of being harmed or killed by the loan-shark upon return [61] nor would she be subjected to being harmed or killed by Masdi [64]. The references refer to the Board’s Decision.

12.  The applicant has no 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.