RE JAWARA ISA

HCAL 1627/2019

[2021] HKCFI 2692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1627 OF 2019

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D E C I S I O N

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1.  The applicant is from Gambia. She came to Hong Kong in 2010. Her stay was extended several times. She subsequently got married on 31/3/2012 with a Hong Kong permanent resident. She then filed an application for dependent visa. She voluntarily returned to Nigeria on 27/1/2013 as the marital relationship turned sour. Her husband withdrawn the application for dependent visa on 9/12/2013.

2.  On 14/3/2014, she returned to Hong Kong as a visitor. She surrendered to the Immigration Department on 15/4/2014 for overstaying.  She filed the non-refoulement claim in this case on 19/6/2014. Her husband had filed another application for dependent visa in 2015 as they had reconciled. The result is pending.

3.  The non-refoulement claim was dismissed by the Director on 27/6/2017. Her appeal to the TCAB was dismissed on 5/10/2018.

4.  The applicant was arranged to marry a Muslim in 1997. She could not get pregnant. Her husband married her cousin in 2000. She left her husband and lived in Lagos, Nigeria. About 2009, she was converted to Christianity. Her father was angry and threatened to kill her. She visited Hong Kong from time to time from 2008—2010. She did not apply for protection as she was ignorant about the scheme. She returned to Nigeria in January 2013 but returned to Hong Kong again in March 2014.

5.  The adjudicator pointed out that the applicant’s fear for her life was from relatives in Gambia.  However, she had left Gambia at the age of five. She moved to Nigeria and obtained citizenship. She was safe in Lagos, Nigeria, for a year until she came to Hong Kong in 2014. She could relocate to Lagos or Ibadan, Nigeria. Christianity was dominant in southern Nigeria. She was not under any real risk of harm if returned to Nigeria. She delayed her application for protection until 2014. It appeared that her main concern was her children in Hong Kong. The proper channel should be to apply for a dependent visa. The adjudicator rejected her appeal.

6.  On 14/6/2019, the applicant applied for leave for judicial review of the TCAB decision. In her affidavit, she did not specify any error in the TCAB decision. She was out of time for about 5 months in the leave application.

7.  In the hearing on 2/2/2021, the applicant indicated that she had nothing to update.  She did not provide any explanation for the delay in the leave application. 

8.  She confirmed that her father had passed away in 2012.  There was no risk for her to return to Lagos, Nigeria.  She also confirmed that she had applied for dependent visa again in 2015.  The result was pending.  She wanted to stay in Hong Kong with her children.

9.  I agree with the adjudicator.  The applicant was safe in Lagos.  Her father, who was the main source of threat, had passed away.  She could practise Christianity on her own.  The proper channel was for her to apply for dependent visa in Hong Kong.

10.  This court found no error of law or procedure in the TCAB decision.  It was reasonable.

11.  There was no good reason to extend the time for the leave application. This court refused leave on 27/4/2021.

12.  The applicant filed a summons on 13/5/2021 for extension of time to appeal. She was about 2 days out of time.

13.  In her affidavit, the applicant asserted that she would like to stay in Hong Kong to take care of her minor children.[1]

14.  In considering whether to extend time for appeal against the refusal of leave, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[2]

15.  While the delay is not substantial, the important issue is the merits of the intended judicial review [3].

16.  The applicant’s fear of danger to her life was not substantiated given her father had passed away. She could relocate to Lagos where she could practise Christianity. I agree with the adjudicator. The intended judicial review was of no merit.

17.  In the circumstances, I refuse the application for extension of time to appeal.