GOMEZ MENDOZA YESICA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2190/2018

[2023] HKCFI 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2190 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 staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 Order dated 23 February 2022 (“the Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4.  In her affidavit dated 21 March 2023, the applicant said that she is late because she did not have the original Form 8 for the application.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  The Court shall 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. The deadline for her appeal is 10 March 2022. The applicant is late for 11 days. I shall consider the merits of her case.

7.  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].”

8.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by the Fuerzas Armadas Revolucionarias de Colombia, alias Revolutionary Armed Forces of Colombia (“FARC”) because she was asked to reveal her partner’s whereabouts.

9.  The Director of Immigration refused her application for the reason that her claim was not substantiated. She appealed to the Board.

10.  Having considered the evidence, the Board found that she failed to provide any reasonable explanation for the inconsistencies of her evidence, and that she failed to provide any documentary evidence, such as documents proving the alleged threats that she received via emails or the bank account provided by the drug dealer for her to send the extorted money. Viewed the evidence in its entirety, the Board found that her claim of receiving threats from email or phone unsubstantiated, her evidence was rejected in its entirety and she had invented the story to bolster her claim. For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed her appeal.

11.  The applicant has not been able to raise any valid ground to challenge the Board’s Decisions. There is not any realistic prospect of success in her intended appeal.

12.  In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.