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HCAL 1176/2019
[2024] HKCFI 727
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1176 OF 2019
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BETWEEN
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Anu Sudha Gurung |
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: |
26 March 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 4 January 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. The deadline for her to file her notice of appeal is 19 January 2024.
4. In her affirmation filed on 26 January 2024, the applicant said that she cannot arrange money for her problem and asked for permission to stay.
Discussion
5. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[1].
6. 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.
7. The applicant is late for only 7 days. However, I shall consider the merits of her 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’s claim was based upon her allegation that if refouled, she would be harmed or killed by the Maoist or her stepbrother. The Director rejected her claim for not being substantiated. She appealed to the Board.
10. Having considered the evidence, the Board found that the applicant will not be subjected to harm by her enemy if she returns to Nepal. It therefore dismissed her appeal.
11. The applicant has not been able to raise any valid reason to challenge the Board’s Decision. Thus, there is not any realistic prospect of success in her intended appeal.
12. 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] 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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