RE SITI CHOIRIYAH AND ANOTHER

HCAL 1121/2019

[2023] HKCFI 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1121 OF 2019

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D E C I S I O N

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THE APPLICATION

1.  This is the applicants’ joint application for extension of time to appeal against the Court’s decision as described below.

2.  The 1^st applicant and the 2^nd applicant are mother and daughter. They are remaining in Hong Kong illegally. They made an application for non-refoulement protection to the Director of Immigration (“the Director”). By the Director’s Decision dated 17 May 2017 (“the Director’s Decision”), their application was rejected.

3.  They appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).

4.  By Notice of Decision dated 6 September 2017 (“the Board’s Decision”), the Board dismissed their appeal.

5.   The applicants jointly filed Form 86 on 26 April 2019 for leave to apply for judicial review of the Court’. Their application was out of time.

6.   By Form CALL-1 dated 29 September 2022 (“the Court’s decision”), the Court refused to extend time for them to file their application for the reason that their application does not have a realistic prospect of success. The Court dismissed their application. The deadline for the applicants to appeal the Court’s decision to the Court of Appeal is 14 October 2022.

7.  By Summons and Affidavit dated 6 January 2023, the applicants jointly applied to the court for extension of time to appeal the Court’s decision to the Court of Appeal.

8.   In the affidavit of the 1^st applicant in support of their application, she said she wants more time to marry the father of the 2^nd applicant (“the father”) because the father has been recognized as a refugee. She wants to combine their case with the father’s case. She referred to the father’s letter with her affidavit. In the father’s letter, the father applied to the Court to allow the applicants’ application to join him in his application for political asylum. He needs time to get married with the 1^st applicant. His lawyer is preparing the documents for him to apply for political asylum.

DISCUSSION

9.  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.

10.  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.

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 applicants have not given good reasons for their delay. On the authority of AW, their application can be dismissed. On the merits of their application, they have no merits in support of their application. The arrangement for the 1^st applicant to marry the father is not a valid reason to challenge the Court’s decision. There is no realistic prospect of success in their intended appeal against the Court’s decision.

13.  Accordingly, I refuse to extend time for their appeal and I dismiss their application.