RE SARINGATUN

HCAL 2560/2018

[2022] HKCFI 1593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 2560 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 and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 Form CALL-1 dated 28 February 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.

4.  The applicant filed a summons on 28 April 2022 for appeal against the Court’s decision out of time. The deadline for her to file her notice of appeal is 14 March 2022.

5.  In her affirmation in support of her application, she said she was late because the court was closed when she wanted to file her notice of appeal.

Discussion

6.  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.

7.  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. Nevertheless, I shall 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 by her husband.

10.  The Director refused her claim for the reason that it was not substantiated. The Director found the level of risk of harm from her husband upon refoulement was assessed to be low; that state protection would be available to her and that internal relocation was available to her.

11.  She appealed to the Board. The Board noticed that the centerpiece of her evidence was inconsistent, namely, whether it was her husband or the applicant insisted on the divorce. The Board also rejected the applicant’s claim that her refusal to divorce her husband was because of her children. It further rejected the applicant’s excuse that she did not know how to apply for protection in Hong Kong after she was arrested in 2014. Thus, the Board refused to accept the applicant as a credible witness. The Board went on to consider the reasonable likelihood of the applicant being persecuted upon refoulement. It found that the applicant was not on the watch list of the Indonesian government and that the alleged injuries did not amount to the level of torture. Even taking the applicant’s evidence to the highest, she failed to establish the risk of being tortured by her husband. For these reasons, the Board rejected her claim on all applicable grounds. In any event, internal relocation was available to the applicant.

12.  The applicant is unable to set out any 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.

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