Re Sih Makartiningtyas

HCAL 2739/2018

[2021] HKCFI 2569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  2739 OF 2018

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

Date of Decision: 9 September 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 28 June 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 24 August 2021 applying for extension of time to appeal against the Court’s decision.

5.In her affirmation in support of her application, she repeated her story in support of her claim without explaining any reason for her delay.

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.

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, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  From the Board’s Decision, it seems that the Board accepted the facts as the applicant alleged.  On that basis, it assessed the applicant’s merits within the context of the statutory provisions and the Convention in relation to the alleged risks. Having considered the relevant facts and by application of the law to the facts, the Board came to the following conclusions:

(1)   the BOR 2 risk fails as her risk came from her ex-husband and not from the state [18];

(2)   the BOR 3 risk fails as the applicant’s ex-husband’s demand and threat are unlikely to be real and she failed to show a genuine and substantial risk of being subjected to ill-treatment should she return to Indonesia [27];

(3)   the Torture risk fails as the applicant failed to discharge the burden of proving the risk of torture and substantial grounds for believing that she would be in danger of being subjected to torture if returned to Indonesia [33];

(4)   her case, being one of domestic abuse or violence, falls outside the ambit of the Refugees Convention, thus her Persecution risk fails [44];

(5)   state protection is available to her in Indonesia [64]; and

(6)   internal relocation is reasonable and open to her in Indonesia. [68]

10.Her reasons in support of her application do not assist her.

11.The applicant has not raised any viable ground to show 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.