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HCAL 1398/2019
[2024] HKCFI 1778
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1398 OF 2019
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BETWEEN
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Yerro Joy Morondoz |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
26 July 2024 |
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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 April 2024 (“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 deadline for her to file her notice of appeal is 26 April 2024.
5. In her summon filed on 28 May 2024, the applicant asked for extension of time to file her notice of appeal. In her affirmation in support of her application, the applicant said:
“… I did not get any letter from the High Court. I am very sorry as I changed my address. I have no experience and no one asked me to update my address in the court. Long time I changed my home. So the court did not do wrong. This is my wrong and I apology. Give me permission to appeal.”
6. She is about a month’s late for her appeal application.
Discussion
7. 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[1].
8. 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.
9. The court’s letter was sent to the applicant’s last known address on 11 April 2024. If the applicant did not update her address with the court, she cannot complain that she did not receive the court’s letter. The Court of Appeal in Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023:
“17. The applicant had not filed any notice of change of address for service to notify of any changes in his address. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. He was therefore deemed to have received the Court’s decision on 1 April 2022.”
10. I shall consider the merits of her case.
11. 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].”
12. The applicant’s claim was based upon her allegation that if refouled, she would be harmed or killed by her husband Asuncion Rowell De Vera as the daughter was born out of wedlock. She also feared that they would become homeless or be subjected to derogatory treatment by the Christian community.
13. Having considered the evidence, the Board found that the applicant’s claim that they would be subject to derogatory treatment because of the daughter’s birth status was misplaced. It also noted that the applicant’s evidence about the exposure of her affair was inconsistent. Second, the Board rejected the applicant’s evidence about the influence of her husband through his allegedly well-connected uncles in the police force and found that the applicants could seek protection from the authorities. Thirdly, the Board found that the COI indicated that internal relocation was a viable option for the applicant and her daughter. As a result, the Board rejected the applicant’s and her daughter’s claims and dismissed their appeals.
14. The applicant has raised no valid ground to challenge the Board’s finding of the facts. Thus, there is not any realistic prospect of success in her intended appeal.
15. In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented.
[1] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:
“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”
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