RE BALAY YA NELSA KICHAYAN

HCAL 2778/2018

[2022] HKCFI 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2778 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 21 March 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 14 April 2022 for appeal against the Court’s decision out of time.

5.  In her affidavit in support of her application, she said the Court Registry was closed on 21 March 2022 and she could not file her notice of appeal. The Court Registry was closed between 7 March 2022 and 11 April 2022. Even if this period of time is not taken into account, the deadline for her to file the notice of appeal in 12 April 2022. The delay is 2 days, which is insignificant.

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 Reny.

10.  The Director rejected her claim for the reason that the alleged risks were not substantiated because because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[16]; (ii) state protection would be available to her [17]-[20] and (iii) internal relocation was an option open to her [21]-[22]. She appealed to the Board.

11.  The Board raised doubts as to her children’s living arrangements, which the applicant gave inconsistent accounts and it was plausible that the kids were still being looked after by her husband [21]. The Board also noticed that the applicant gave different versions for matters relating to Reny [22]-[27]. Further, the applicant’s versions on the previous and recent assaults from Reny were implausible and her explanations of why the police would not assist her and of why she could not relocate to other areas deviated from the country of origin information [28]-[41]. As a result, the Board found the centerpieces of her claim to be incredible [44]-[45]. For the above reasons, the Board rejected her claim and dismissed her appeal.

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.