Case Document

100%Judiciary

HCAL 535/2019

[2021] HKCFI 2065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 535 OF 2019

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RE:	LASMINI	1^st Applicant
	ALUS AAMIR SAMUEL alias AAMIR ALUS AAMIR SAMUEL	2^nd Applicant

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

Date of Decision: 29 July 2021

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D E C I S I O N

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The application

1.The 1^st applicant (the “applicant”) is the mother of the 2^nd applicant, who was given birth in Hong Kong. This is their joint application.

2.The applicants are illegal immigrants and they lodged a joint 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 the evidence, the Board, by its Decisions respectively dated 20 February 2017 and 20 October 2017 (the “Board’s Decisions”), rejected their appeal and affirmed the Director’s Decisions.

3.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 Decisions.

4.By Order dated 12 May 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.

5.The applicants filed a summons dated 8 September 2020 applying for extension of time to appeal against the Court’s decision. The file was misplaced and the application has not been able to be dealt with within the usual time.

6.In the applicant’s affirmation in support of their joint application, she said that she did not receive the Court’s decision in time.

Discussion

7.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.

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 Boardconsidered the applicant’s evidence and, for the reasons set out in the Board’s Decision dated 20 February 2017, came to the conclusion:

“22. I do not accept that the alleged potential assailants are interested to locate A1 and A2 even if they (the alleged assailants) should have huge resources and manpower, as well as are willing to expand same to search for needle in a haystack. I find no substantial risk or any substantial basis of fear. There are numerous places in Indonesia, at least other than A1’s home locality, where she and A2 can safely live without undue hardship, which is another reason for today’s appeal to fail, independent of what was stated earlier.”

10.The Board also took into consideration that the first applicant had taken 3 years and 5 months to make the protection claim and it asked for an explanation. After considering her explanations, it took the view that she was dishonest and unreliable and found that she and her son were not genuine claimants. See paragraphs 34 to 37 of the Board’s Decision dated 20 February 2017.

11.In the Board’s Decision dated 20 October 2017, the Board relied upon its reasons in its first Decision and rejected the applicants’ claim on BOR 2 risk.

12.The first applicant has not been able to say in what respect had the Board erred in its Decisions.

13.The first applicant’s ground in support of this application is not valid to show that they have any reasonable prospect of success in their intended appeal.

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