RE PALAD JONALYN PLAZA

HCAL 674/2019

[2022] HKCFI 3679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 674 OF 2019

____________________

____________________

____________________

D E C I S I O N

____________________

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 15 September 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 8 November 2022 applying for extension of time to appeal against the Court’s decision. In her affidavit in support of her application she said she did not receive the Court’s decision within 14 days. According to the record, the Court’s decision was sent to the applicant by ordinary post on 15 September 2022 and it was not returned by 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 29 September 2022. The applicant is late for 1 month and 10 days. I shall now consider the merits of her 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 the head of the drug syndicate (the “Boss”) whom her husband worked for.

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

10.  Having considered the evidence, the Board found that the applicant was not a witness of truth [31].  The Board noticed that the applicant gave confusing evidence as to when she resigned from her employment in Hong Kong or when her employment contract was terminated. She was unable to give consistent account as to whether she or her mother reported the threats to the police [38].  Further, on the applicant’s evidence, her family lived safely in Camarines Norte and Camarines Sur [39].  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.