RE WIDAYANTI MANDASARI

HCAL 196/2019

[2022] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 196 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 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 8 April 2022 (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 23 April 2022 (within 14 days after such order)[1]. As the Court Registry was close because of COVID-19 virus between 7 March 2022 and 11 April 2022, time should run from 12 April and the deadline should be 26 April 2022.

4.  The applicant filed a summons on 16 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 know the procedure and was out time.

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.  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. I shall consider the merits of the case.

8.  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].”

9.  The applicant claimed that if refouled, she would be discriminated because her son was born out of wedlock.

10.  The Director found that no real risk of harm was present even if she was discriminated upon refoulement because (i) her perceived risk of harm was merely speculative and, in any event, localized within the neighborhood as claimed [12]-[13]; (ii) state protection would be available to her [14]-[16], and (iii) internal relocation was also an option [17]. The references refer to the Director’s Decision. She appealed to the Board.

11.  The Board accepted the applicant’s concerns that she might be discriminated and her son would be left with no care upon her refoulement. However, it concluded that neither concern attained a level of severity which warranted an international protection [25]. The Board found that there was no evidence of severe pain and suffering or of state involvement [29]. It also found that the difficulties of returning could be alleviated by the support from her family [33]. For these reasons, the Board rejected her claim and dismissed her appeal. The references refer to the Board’s Decision.

12.  The applicant is unable to set out any valid ground 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.

13.  There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and dismiss her application.