RE ISMUWATI YULIANA AND OTHERS

HCAL 2768/2018

[2022] HKCFI 2126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2768 OF 2018

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D E C I S I O N

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The application

1.  The applicants are illegal immigrants by remaining in Hong Kong without permission. The 1^st applicant is the mother of the 2^nd and the 3^rd applicants. The applicants jointly lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, rejected their application and they appealed to the Torture Claims Appeal Board (the “Board”). Having considered their evidence, the Board, by its Decision (the “Board’s Decision”), rejected their appeal and affirmed the Director’s Decisions.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 28 March 2022 (the “Court’s decision”), the Court dismissed their application for the reason that there is no realistic prospect of success in their intended judicial review. The deadline for them to file their notice of appeal is within 14 days after the order[1].

4.  On behalf of herself, the 2^nd and the 3^rd applicants, the 1^st applicant filed a summons on 23 June 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of their application, the 1^st applicant said she did not receive the Court’s order. On the Court’s record, the Court’s order was sent to their last known address. Nevertheless, the Court will first consider the merits of their case.

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. 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 1^st applicant claimed that if refouled, she would be harmed or killed by her husband because she refused to remit money to him and also because of her extramarital affair with another man, leading to the birth of the 2^nd and the 3^rd applicants.

10.  The Director found that their claim was not substantiated and refused their application. They appealed to the Board.

11.  The Board considered the applicants’ case and found that the 1^st applicant gave inconsistent evidence. It refused to accept her as a credible witness and rejected their claims. The Board had also considered the 2^nd and the 3^rd applicants’ situations. The Board shared with the 1^st applicant’s concern that the children might have difficulties in integrating into the Indonesian community. However, based on the country of origin information, the Board concluded that the difficulties could be overcome and it would not be unreasonable for the applicants to relocate to cities like Jakarta [73]-[79]. Thus, the Board dismissed their appeals.

12.  There is no valid ground to challenge the Board’s Decision. Nor can the applicants point out any error on the part of this Court in the assessment of their application.

13.  There is no realistic prospect of success in their intended appeal. I therefore refuse to extend time for them to appeal and I dismiss their application.