RE DAGDAGEN VIRGINIA BAGANGAO

HCAL 2483/2018

[2022] HKCFI 3762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2483 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 25 October 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 29 November 2022 applying for extension of time to appeal against the Court’s decision. In her affidavit in support of her application she said she is late because she does not know the court procedure and she does not know how to file her Notice of Appeal.

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 8 November 2022. The applicant is late for 21 days. 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 the New People’s Army (“NPA”).

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

10.  The Board considered that the centerpiece of the applicant’s claim was inherently inconsistent and it highlighted the material inconsistencies [29]-[36].  The Board also assessed the country of origin information and found that state protection against the NPA was in place [45]-[57].  Meanwhile, the Board found that the past ill-treatments from the NPA was of low intensity and frequency [75].  In addition, when the applicant stayed in other areas of the Philippines from 2005 to 2010, she had encountered no problems with the NPA [76].  Besides, the applicant’s conducts were inconsistent with someone who was genuinely in need of protection [77].  The references refer to the Board’s Decision.

11.  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.

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