DIYAH AYU ASTUTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 742/2019

[2023] HKCFI 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 742 OF 2019

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BETWEEN

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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 17 March 2023 (“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.  In her affirmation filed on 25 April 2023, the applicant said that she did not receive the Court’s decision. According to the record, the Court’s decision was sent to her last known address on 17 March 2023 without being returned from the Post Office.

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 on paper 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 1 April 2023. The applicant is late for about 3 weeks. I shall 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’s claim was made on the basis that, if refouled, she would be harmed or killed by her fiancé Kumar as she refused to join his terrorist organization.

9.  The Director of Immigration refused her application for the reason that her claim was not substantiated. She appealed to the Board.

10.  Having considered the evidence, the Board found that the applicant had suffered no past harms; that Kumar had never carried out any physical attacks on her despite he had ample opportunities to do so; he had never harmed the applicant’s family; and that it had been 19 years since the applicant’s last contact with Kumar. In addition, state protection and internal relocation were both viable alternatives. The Board therefore dismissed her appeal.

11.  The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is not any 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.