RE NUR AZIZAH

HCAL 2532/2018

[2022] HKCFI 2086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2532 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, by his Decisions, 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 Decisions.

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 14 May 2020 (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 29 May 2020 (within 14 days after such order)^[1].

4.  The applicant made an application for appeal out time before this application. However, the application was misplaced. Hence, the applicant took out this application.

5.  The applicant filed a summons on 14 June 2022 for appeal against the Court’s decision out of time.

6.  In her affirmation in support of her application, she did not state any reason.

Discussion

7.  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.

8.  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.

9.  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].”

10.  The applicant claimed that if refouled, she would be harmed or killed by loan sharks Madam Lilis and her husband. Besides, she also claimed that she would be harmed by Adi Pamungkas (“Adi”) because she refused to marry him.

11.  The Director found that her claim was not substantiated and refused her application. She appealed to the Board.

12.  The Board considered the applicant’s case and concluded that “…her evidence, in material aspects, is not credible and therefore not reliable. …” [26] The Board further stated that even if it accepted her evidence, which it did not, it would still dismiss her claim for the reasons below with references refer to the Board’s Decision:

(1) her creditor Lilis was at that time 94 years old. It would be very likely that she would harm her physically [34];

(2) state protection would be available to her [38];

(3) internal relocation was an option for the applicant [47];

(4) the alleged torture was of private business [53];

(5) her problems with Madam Lilis and Adi had nothing to do with religion, race, nationality, membership of a particular social group or political opinion [63] and

(6) her case did not involve the passing of any death sentence by a court of law [68].

13.  There is 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.

14.  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.