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HCAL 2367/2019
[2025] HKCFI 3214
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2367 OF 2019
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BETWEEN
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Lumapad Jocelyn Ariola |
1st Applicant |
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Lumapad Xryl-J Ariola |
2nd 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: |
12 August 2025 |
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D E C I S I O N
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THE APPLICATION
1. The applicants are mother and daughter, a minor. This is their joint application.
2. The 1st applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim for herself and on behalf of her daughter, who was born in Hong Kong, with the Director of Immigration (“the Director”). The Director rejected their applications 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 their appeal and affirmed the Director’s Decision.
3. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.
4. By Judgment dated 29 April 2025 (“the Judgment”), the Court dismissed their joint application for the reason that there was no realistic prospect of success in their intended application.
5. The Court’s decision was sent to the applicants’ last known address on 29 April 2025 without being returned by the Post Office. They were deemed to receive the Judgment.[1]
6. The deadline for them to file their notice of appeal is 13 May 2025.
7. In her summon filed on 14 May 2025, the 1st applicant asked for extension of time to file the notice of appeal. In her affirmation in support of her application, she did not state the reason.
8. Her application for extension of time for the appeal is late for 1 day only.
Discussion
9. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].
10. 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.
11. I shall consider the merits of their case. The 2nd applicant relies on the facts of her mother’s claim in support of her claim.
12. 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].”
13. The applicants’ claim was based upon the 1st applicant’s allegation that if refouled, she will be harmed or killed by her husband because of her extra-marital affairs in the Philippines and she had given birth to a son with her partner.
14. The Director rejected their application for the reason that their claim was not substantiated. They appealed to the Board.
15. The Board concluded that the applicants’ claimed fear was not substantiated as the 1st applicant had her family’s support, state protection and internal relocation is viable.
16. The Board had also considered the 2nd applicant’s claim separately as she is a minor.
17. The applicants have raised no valid ground to challenge the Board’s finding of the facts.
18. The applicants have not raised any valid ground to challenge this Court’s Judgment.
19. There is no realistic prospect of success in their intended appeal.
20. In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their joint application.
21. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2nd applicant’s application a nullity.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicants were unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. … 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. …”
[2] 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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