RE MUAROFAH

HCAL 1305/2018

[2022] HKCFI 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1305 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 rejected her application and she appealed to the Torture Claims Appeal Board (the “Board”) and the Board dismissed her appeal (the “Board’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 25 November 2021 (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 17 December 2021 applying for extension of time to appeal against the Court’s decision.

5.  In her affirmation in support of her application, she said “… I am a mother of a child and all the work of home I do alone. That’s why I appeal late … I want an extension of time…”.

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.

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 delay is not substantial, but her reason for the delay is unconvincing. However, I have to consider the merit of her intended appeal.

10.  The applicant claimed that, if refouled, she would be harmed or killed by her husband Arif because she had no money to give him.

11.  The Director refused her claim for the reason that it was not substantiated. The Director found that there was no ground for believing that she would be harmed or killed by her husband if she returned to Indonesia [13]-[15]; that state protection would be available to her [16] and that internal relocation was an option open to her [17].

12.  While the Board accepted that the ex-husband might have verbally threatened her or caused physical harms to her, it found that the applicant and the current husband’s reunion might not stretch too far into the future. Thus, if the applicant was refouled, she would not stay in Indonesia for a lengthy period of time [35]. The Board also rejected her fear that there was government violence as such fear was vague and unfounded [37]-[39]. In any event, internal relocation to cities like Jakarta was available to the applicant [51]-[54]. Thus, the Board rejected her claim on all applicable grounds.

13.  The applicant has not raised any viable ground to show that she has any realistic prospect of success in her intended appeal. Nor has she set out any reasons to show that the Court’s decision was in error. There is no realistic prospect in her intended appeal.

14.  In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.