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HCAL 1283/2019
[2024] HKCFI 2774
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1283 OF 2019
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BETWEEN
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Ale Bishnu Kumari |
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 |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
24 October 2024 |
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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 29 April 2024 (“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 Court’s decision was sent to the applicant on 29 April 2024 without being returned by the Post Office. She was deemed to receive the Court’s decision.[1]
5. The deadline for her to file her notice of appeal is 13 May 2024.
6. In her summon filed on 2 October 2024, the applicant asked for extension of time to file her notice of appeal. In her affirmation in support of her application, the applicant said she did not receive the Court’s decision within reasonable time.
7. Her application for appeal is late for more than 4 months.
Discussion
8. 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].
9. 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.
10. I shall consider the merits of her case.
11. 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].”
12. The applicant’s claim was based upon her allegation that if refouled, she would be harmed or killed by her friend, Pradeep Thapa, due to an outstanding loan.
13. The Director rejected her application for the reason that her claim was not substantiated. She appealed to the Board.
14. The Board disbelieved her evidence, and found that she failed to substantiate each of the applicable risks.
15. The applicant has raised no valid ground to challenge the Board’s finding of the facts.
16. There is no 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.
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(K.W. Lung)
Deputy High Court Judge
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The applicant was 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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