RE SUSRIANAH

HCAL 503/2019

[2022] HKCFI 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 503 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 28 December 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 24 January 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said that she did not understand English and was not aware of the court procedure in respect of time limit for appeal.

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. The delay of 13 days is not significant. 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 the creditor, from whom her family had borrowed money for the family expenses and the farming business, and the fundamentalist groups in her area because she had sexual relationship with a man before marriage, which is prohibited under the Muslim.

10.  The Director found that the level of risk of her being harmed or killed by the creditor or the fundamentalist groups in her locality was assessed to be low (IV)[13]; that state protection would be available to her (IV)[18] and that internal relocation was an option open to her (IV)[21]. She appealed to the Board.

11.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. The Board found that the applicant would not be at risk of any harm and did not consider that there were substantial grounds for believing that she would be in danger of being subjected to torture if she returned to Indonesia. Based upon the gaps, inconsistencies and other problems with her evidence, the Board rejected her claims, both individually and cumulatively in their entirety. It dismissed her claim on all grounds. See paragraphs 46-104 of the Board’s Decision.

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.