RE SURTINI

HCAL 2554/2018

[2022] HKCFI 3252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2554 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 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 28 March 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 21 April 2022 applying for extension of time to appeal against the Court’s decision.

5.  The Court found that she was within time to appeal when she took out the application, but only out of time when the Court considered her application. The Court therefore extended time for her to file her notice of appeal on or before 6 July 2022.

6.  The applicant failed to comply with the Court’s order to file the notice of appeal within the time stipulated. The applicant then filed a summons on 17 August 2022 applying for appeal against the Order dated 28 March 2022.

7.  The Court issued an Order dated 25 August 2022, ordering that unless the applicant took out an originating summons for judicial review, her application was deemed to have been abandoned. However, this order was issued under the misconceived conception that the applicant had failed to issue the originating summons after leave had been granted to apply for judicial review. This order should therefore be a nullity and have no effect.

8.  By another summons filed on 19 September 2022, the applicant applied for leave to appeal out of time again. In her affirmation, she said that she did not understand the previous order. This is understandable. However, she has not explained why she is late this time.

9.  I shall now deal with her application.

Discussion

10.  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.

11.  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. I shall first consider the merits of the case.

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 applicant claimed that, if refouled, she would be harmed or killed by her husband because she wanted to divorce him.

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

15.  Having considered the applicant’s evidence and the country of origin information, the Board found that there was no risk of harm upon the applicant’s return for the following reasons: (i) it was unlikely that the applicant would have contacts with her husband again [47]-[50]; (ii) even if she did, she would be able to seek help from relevant authorities [51]; and (iii) internal relocation was available to her [52]. The references refer to the Board’s Decision.

16.  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.

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