Re Himatun Nafiah

HCAL 465/2021

[2021] HKCFI 2059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  465 OF 2021

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

Date of Decision:  23 July 2021

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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 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 3 May 2021 (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 dated 2 July 2021 applying for extension of time to appeal against the Court’s decision.

5.In her affirmation in support of her application, she said that she did not receive the Court’s decision within reasonable time.  According to the court’s record, the Court’s decision was sent to her new address on 20 May 2021 and was not returned.

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 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.

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 Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its conclusion at paragraph 28:

“Toward the end of the hearing, the Board raised that the applicant’s evidence indicated that she had fabricated all of her claims, in relation to both her mother and Christian conversion, in order to apply for protection, and prolong her stay in Hong Kong. The Board invited the applicant to comment, however she declined.”

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

11.She has not raised any viable ground to support that she has any reasonable prospect of success in her intended appeal.

12.In the circumstances, I refuse to extend time for her appeal.  Accordingly, I dismiss her application.

The applicant was unrepresented.