RE ANA LUSIA

HCAL 1085/2019

[2022] HKCFI 2073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1085 OF 2019

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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 remaining in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). Her claim on the Torture risk, the BOR 3 risk and the Persecution risk were rejected by the Director. She appealed to the Torture Claims Appeal Board (the “Board”). The Board dismissed her appeal. The applicant did not take the matter further.

2.  The Director also rejected her claim on BOR 2 risk and she appealed to the Board. Having considered her evidence, the Board, by its Decision (the “Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

3.  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.

4.  By Form CALL-1 dated 31 May 2022 (the “Court’s decision”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended judicial review. The deadline for her to file her notice of appeal is within 14 days after such order[1].

5.  The applicant filed a summons on 22 June 2022 for appeal against the Court’s decision out of time.

6.  In her affirmation in support of her application, she said that the Court’s decision was unfair without giving her opportunity to clarify her situation in her country. Also she did not receive the Court’s order. She was not assisted by legal service and she did not know the time limit for her appeal.

Discussion

7.  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.

8.  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. I shall consider the merits of the case.

9.  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].”

10.  A hearing was fixed for her. However, due to COVID-19 outbreak, the Court, by letter to the applicant, decided to call off the hearing and deal with her application on paper unless she informed the Court that it is not possible to do so. She was also advised to submit written submissions to the Court. She did not reply to the Court’s letter. Therefore the Court proceeded to consider her case on paper. See paragraph 2-6 of the Court’s decision.

11.  Accoring to the record, the Court’s decision had been sent to her last know address. Nevertheless, the Court will consider the merits of her case.

12.  The applicant claimed that if refouled, she would be harmed or killed by an unknown loan shark because she defaulted repayment of her loan and her husband’s loan.

13.  The Director found that her claim on Torture risk, BOR 3 risk and Persecution risk was not substantiated and refused her application. She did not pursue the matter further. The Director had also rejected her claim on BOR 2 risk and she appealed to the Board.

14.  The Board, having considered the evidence given by the applicant at the hearing, concluded that BOR 2 risk did not apply to her case and therefore dismissed her appeal.

15.  There is no valid ground to challenge the Board’s Decision. Nor can she point out any error on the part of this Court in the assessment of her application.

16.  There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and I dismiss her application.