RE RESURRECCION MARYJANE YACAPIN

HCAL 2085/2018

[2022] HKCFI 1614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2085 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 way of overstaying 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 23 February 2022 (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. The deadline for her to file her notice of appeal is 10 March 2022 (within 14 days after such order)[1]. Since the Court Registry was closed between 7 March to 11 April 2022, such period should not count. The deadline becomes 26 April 2022 (14 days from 12 April 2022).

4.  The applicant filed a summons on 10 May 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said she did not receive the court’s letter until May. She is not satisfied with the Court’s decision as the Court disregarded her dangerous situation.

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 is about 2 weeks. 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 her husband and killers.

10.  The Director found that the level of risk of her being harmed or killed upon refoulement was assessed to be low [11]; that state protection would be available to her [12]-[16] and that internal relocation was an option open to her [17]-[18]. The references refer to the Director’s Decision. She appealed to the Board.

11.  The Board observed that there were discrepancies in the applicant’s oral evidence with those stated in her non-refoulement claim, in particular, the details of the murder that she witnessed [37]-[55]. She also provided inconsistent accounts on the details in relation to the fear of harm from her husband [57]-[74]. Thus, the Board refused to accept the material aspects of the applicant’s claim as to the murder and the husband’s threats or assaults [75]-[81]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds [82]-[117]. The references refer to 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.