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HCAL 785/2021
[2022] HKCFI 1883
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 785 OF 2021
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| RE: |
Fitriyani Fuji |
Applicant |
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Before: Deputy High Court Judge K.W. Lung in Chambers
Date of Decision: 6 July 2022
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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 and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 Form CALL-1 dated 17 August 2021 (the “Court’s decision”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended judicial review. The deadline for her to file her notice of appeal is 1 September 2021 (within 14 days after such order)[1].
4. The applicant filed a summons on 30 May 2022 for appeal against the Court’s decision out of time.
5. In her affirmation in support of her application, she said she did not receive the Court’s letter and she did not know about the time for appeal as she was not legally represented. She further said the Court’s decision was unfair as she was not given an opportunity to clarify her case and situation in her country.
Discussion
6. 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.
7. The Court’s Form CALL-1 was sent to the applicant’s last known address by ordinary post. Pursuant to Order 65, rules 5 (2)(b) and 7(2) of the RHC, it is deemed to be served on the next following day, not being a specified day such as Saturday or a general holiday.[2]
8. 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. The delay is serious. I shall consider the merits of the case.
9. 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].”
10. The applicant claimed that if refouled, she would be harmed by her mother and her brother because of family disputes.
11. The Director found that her claim was not substantiated and refused her application. She appealed to the Board.
12. The Board found that there was no reliable evidence to show that her mother and her brother would harm or kill her if she returned to Indonesia [41 (1)]; that she would face risk throughout Indonesia [41(2)]; that she would suffer injuries to the required severity [41(3)] and that the state was unwilling to help her for a Convention reason [41(4)]. Also there was no evidence to show that she was subjected to BOR 2 risk [67]. Her illness of tuberculosis had been cured [83] and internal relocation, though not necessary in this case, nevertheless should be an option open to her [91]. The references refer to the Board’s Decision.
13. The applicant requested an oral hearing. The Court fixed a hearing date for her. However, she failed to attend court without any prior notice. The Court therefore proceeded to assess her case on the papers. She cannot complain that she was not given an opportunity of clarifying her case to the Court. The fact that she was not legally advised the time for her appeal is not an acceptable reason because she was always at liberty to make enquiry with the Duty Lawyers Office or the Registry of the High Court herself.
14. The grounds set out in her affirmation are not valid to challenge the Board’s Decision. Nor can she point out any error on the part of this Court in the assessment of her application.
15. There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and I dismiss her application.
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(K. W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented.
[1] Order 53, rule 3(4) RHC
[2] Ordinary service: how effected (O. 65, r. 5)
(2) For the purposes of this rule, and of section 8 of the Interpretation and General Clauses Ordinance (Cap. 1), in its application to this rule, the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purposes aforesaid shall be-
(b) in the case of an individual, his usual or last known address,
Effect of service at certain time (O. 65, r. 7)
(2) For computing a period of time after service of the document, the document is deemed to be served on the next following day, not being a specified day.
(3) In this rule—
specified day (指明日子) means—
(a)a Saturday;
(b)a general holiday;
(c)a gale warning day as defined by section 71(2) of the Interpretation and General Clauses Ordinance (Cap. 1); or
(d)a black rainstorm warning day as defined by that section.
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