RE DO THI HA

HCAL 198/2019

[2022] HKCFI 1279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 198 OF 2019

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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 18 November 2021 (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 12 April 2022 for appeal against the Court’s decision out of time. The deadline for her to file her notice of appeal is 2 December 2021.

5.  In her affirmation in support of her application, she said she did not receive the court’s letter. According to the record, the letter was sent to her on 18 November 2021 at her last known address without return from the Post Office.

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 creditor because she was unable to repay her debt.

10.  The Director rejected her claim for the reason that the alleged risks were not substantiated because because (i) there was no ground for believing that she would be harmed or killed by friend creditor; (ii) state protection would be available to her and (iii) internal relocation was an option open to her. She appealed to the Board.

11.  The Board heard her evidence and did not accept the facts of her case. It considered that her evidence was unreasonable and implausible. It also agreed with the Director that state protection and internal relocation were available to her.

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.