Re Mesiyati and Another

HCAL 1885/2018

[2021] HKCFI 1916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1885 OF 2018

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 20 July 2021

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D E C I S I O N

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The application

1.The applicants are illegal immigrants.  The 1^st applicant is the mother of the 2^nd appellant, on whose behalf and herself, she lodged a non-refoulement claim with the Director of Immigration (“the Director”).  The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”).  Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 7 August 2020 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

4.The applicants filed a summons dated 24 August 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been dealt with in the usual time.

5.In her affirmation in support of their application, the 1^st applicant said that the Court’s decision was delivered to her late and she did not have knowledge of the judicial system of Hong Kong.

Discussion

6.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.

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 Board had taken the opportunity of asking questions from the 1^st applicant and found that the she was not a reliable witness and that her claims were not entirely credible and had been embellished and exaggerated and fabricated in part to create a claim for protection; that her claims about her husband’s debt and the threats that she and her son would face from a money-lender or loan-shark were all rejected; that the Board did not accept that there were substantial grounds to believe that the applicant son would face a risk of being subjected to harm, from, by or on behalf of the 1^st applicant’s husband and/or a moneylender or loan-shark to whom the 1^st applicant’s husband or anyone else owed money, that would amount to or constitute torture in Indonesia [73].  See the detailed reasons in paragraph 41-67 of the Board’s Decision.  The references are those in the Board’s Decision.

9.The applicant has not been able to say in what respect had the Board erred in its Decision.

10.Her grounds in support of this application are not valid to show that they have any realistic chance of success in their intended appeal.

11.In the circumstances, I refuse to extend time for their appeal.  Accordingly, I dismiss their application.

The applicants were unrepresented.