RE ARIAS RIOS YESSICA ANDREA

HCAL 2191/2018

[2022] HKCFI 3227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2191 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 11 August 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 September 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application she said she did not receive the Court’s decision. According to the record, the Court’s decision was sent to her on 11 August 2022 without return 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 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 25 August 2022. The applicant is late for 1 month and 4 days. I shall now consider the merits of the 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 her ex-boyfriend Daniel Torres Montes (“Daniel”).

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

10.  Having hear the evidence, the Board found that it is plausible that the applicant was a victim of domestic violence [24]. However, the Board considered that the applicant’s evidence on the material aspects was vague and fundamentally inconsistent [37]. For example, she provided different names for the alleged ex-boyfriend [39]-[41]. She also gave different time periods of her relationship with Daniel [42]-[44]. Further, she contradicted her own evidence as to Daniel’s background [45]-[46]. Since the applicant based her claim on the abusive conducts of Daniel, these inconsistencies seriously undermined her credibility [47]. 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.