SUMIYATI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 935/2018 and 618/2020
(Heard together)

[2023] HKCFI 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 935 OF 2018 AND 618 OF 2020

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D E C I S I O N

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THE APPLICATION

1.  By an Order dated 9 June 2020, HCAL 935 of 2019 and HCAL 618 of 2020 were heard together as the 1^st applicant in the former proceeding is the mother of the 2^nd applicant in the latter proceeding. The daughter relies upon her mother’s facts in support of her application and the mother is also the guardian ad litem of her daughter.

2.  This is the applicants’ joint application for extension of time to appeal against the Court’s decision as described below.

3.  The 1^st applicant and the 2^nd applicant are remaining in Hong Kong illegally. They made their applications for non-refoulement protection to the Director of Immigration (“the Director”) and their applications were rejected.

4.  They appealed the Director’s decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).

5.  The Board dismissed their respective appeals by the Board’s Decisions dated 16 January 2018 and 26 September 2019 (“the Board’s Decisions”).

6.  The applicants filed Form 86 on 25 May 2018 and 14 April 2020 respectively for leave to apply for judicial review of the Board’s Decisions. Their applications were heard together by the Court.

7.  By Form CALL-1 issued on 11 March 2021 (“the Court’s decision”), the Court dismissed their applications. In relation to the mother’s case, the Court found that the Board had rejected her evidence as incredible. As to the daughter’s case, the Court found that the Board had considered her case separately. It had taken into account of her difficulty in internal relocation, but found that there are sufficient facilities in Indonesia for her and her mother.

8.  The deadline for the applicants to file their notice of appeal is 26 March 2021. The applicants are therefore late to file their notice of appeal for about 1 year and 10 months.

9.  By Summons and Affirmation dated 5 January 2023, the applicants jointly applied to the court for extension of time to appeal the Court’s decision to the Court of Appeal.

10.  In the affirmation of the 1^st applicant in support of their joint application, the 1^st applicant did not set out any specific ground.

DISCUSSION

11.  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.

12.  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.

13.  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].”

14.  The applicants have not given any reason for their delay. On the authority of AW, their application can be dismissed. On the merits of their application, they have no merits in support of their application. The Board rejected the mother’s evidence and had separately considered the daughter’s case. It found that the Indonesian government provided sufficient facilities for the mother and the daughter. There is no evidence from the applicants to challenge the Board’s Decision.

15.  There is no realistic prospect of success in their intended appeal against the Court’s decision.

16.  Accordingly, I refuse to extend time for their appeal and I dismiss their application.