RE SITI BADRIYAH

HCAL 1044/2019

[2022] HKCFI 3467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1044 OF 2019

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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 June 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.  The applicant filed a summons on 25 October 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application she did not receive the Court’s decision. According to the record, the Court’s decision was sent to her last known address on 23 June 2022.

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 7 July 2022. The applicant is late for 3 month and 18 days. I shall now consider the merits of the 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 claimed that, if refouled, she would be harmed or killed by her moneylender.

9.  The Director refused her application because her claim was unsubstantiated. She appealed to the Board.

10.  Before the Board, she had added some information for the Board’s consideration. After a few questions from the Board, she said that she no longer remembered the facts and would just relied upon the facts she had submitted to the Director. Having considered her evidence, the Board did not accept her evidence of her husband’s loan, the loan shark and that she was threatened by the loan shark to repay her husband’s loan. In a nutshell, the Board rejected her evidence on the facts in support of her claim. Thus, the Board rejected the applicant’s claim and dismissed her appeal. See paragraph 9 of the Board’s Decision.

11.  The applicant has not been able to raise any valid reason to show that she has a 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.