RE MAGAR NISHA

HCAL 1408/2018

[2022] HKCFI 2834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1408 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 1 April 2021 (“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 dated 24 August 2022 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said that she did not receive the Court’s decision because she gave the Castle Peak Immigration address where she was detained. But she had been released when the Court decision was sent to her. She did not understand English and the Court’s decision was not translated or interpreted to her. She considered the Court’s decision was unfair in that the Court did not take into consideration she did not understand English and no language assistance was provided for her. Nor was she provided any legal assistance.

Discussion

6.  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.

7.  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 delay is over one year and is serious. I shall first 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 her parents’ creditor and a man (“the Man”).

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

11.  The Board had heard her evidence and:

(1) found that most, if not all, the core assertions to the non-refoulement claim had been fabricated or was wholly unreliable; [50]

(2) that there was no evidence that the government was involved [53]; and

(3) that she had failed to establish that her fear or risk was well-founded. [58]

12.  The references above refer to the Board’s Decision.

13.  The applicant has not been able to say in what respect had the Board erred in its Decision or this Court had committed any error in the assessment of the case. There is, therefore, no realistic prospect of success in her intended appeal.

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