COMPAY IRENE NAVARRO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2455/2019 and HCAL 550/2023
(Heard together)

[2025] HKCFI 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2455 OF 2019

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 550 OF 2023

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_____________

(Heard Together)

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D E C I S I O N

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The application

1.  This is a consolidated action.

2.  The applicants had lodged their non-refoulement claims with the Director of Immigration (“the Director”). The Director had made 2 Decisions, namely the Director’s 1^st Decision in relation to the claims of the 1^st applicant and the 2^nd applicant; and the Director’s 2^nd Decision in relation to the claims of the 3^rd and the 4^th applicants, dismissing their claims. The Director’s 1^st and 2^nd Decision are collectively called “the Director’s Decisions”. The applicants had appealed the Director’s Decisions to the Torture Claims Appeal Board (“the Board”).

3.  The Board had made 2 Board’s Decisions, viz. the Board’s 1^st Decision for the appeals of the 1^st and 2^nd applicants against the Director’s 1^st Decision; and the Board’s 2^nd Decision for the appeals of the 3^rd and the 4^th applicants against the Director’s 2^nd Decision. The Board’s 1^st and 2^nd Decisions are called “the Board’s Decisions”. By the Board’s Decisions, the Board dismissed the applicants’ appeals.

4.  The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 13, the 3^rd applicant, her daughter, aged 4 and the 4^th applicant, her son, aged 4 (“the children”).

5.  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 Decisions.

6.  By Order dated 7 October 2024 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

7.  The Court’s decision was sent to the applicants on 7 October 2024 without being returned by the Post Office. They were deemed to receive the Court’s decision.[1]

8.  The deadline for them to file their notice of appeal is 21 October 2024[2].

9.  In their summons filed on 22 October 2024, the applicants asked for extension of time to file their notice of appeal against the Court’s decision. In the mother’s affirmation in support of their application, the mother said:

“I’m late to appeal on time because my son was sick. I’m asking for extension of time.”

10.  Their application for appeal is late for 1 day only.

11.  This Court held that since the delay was only 1 day and the mother had given the reason that her child was sick, though there was no medical evidence in support of the mother’s assertion, it gave the benefit of the doubt to the applicants and extended time for the applicants to file the notice of appeal within 7 days from the date of the Order.

12.  The Order was dated 5 December 2024. Time expired on 13 December 2024.

13.  By summons dated 12 February 2025, the applicants asked for extension of time to appeal against the Court’s decision. In her affirmation in support of her application, the 1^st applicant said that her landlord had traveled outside Hong Kong and only came back on 11 February 2025. She therefore asked for extension of time.

14.  The delay is one month and 3 weeks. There is no evidence to prove the 1^st applicant’s allegation other than her own affirmation.

Discussion

15.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

16.  In view of the above circumstances, I have to 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.

17.  I shall consider the merits of their case.

18.  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].”

19.  The applicants’ claims are based upon the 1^st applicant’s allegation that if refouled, the applicants would be harmed or killed by (i) a creditor due to the 1^st applicant’s default in loan payment and (ii) the 1^st applicant’s husband because of her extra-marital affairs; and (iii) the 1^st applicant’s family because the 1^st applicant had given birth to the children out of wedlock.

20.  The Director rejected their claims for the reason that they were unsubstantiated.

21.  The applicants appealed the Director’s Decisions to the Board, which found that their claims were unfounded, and the 1^st applicant’s evidence in relation to the threats or danger if they returned to their country was unreliable and it dismissed their appeals.

22.  The applicants fail to raise any valid challenge to the Board’s Decisions or the Court’s decision.

23.  There is no realistic prospect of success in their intended appeals.

24.  In the circumstances, I refuse to extend time for their intended appeals. Accordingly, I dismiss their application.