Case Document

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HCAL 1409/2018

[2021] HKCFI 2636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

"NO 1409 OF 2018

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RE:

Saldua Dorothy Trifalgar

Applicant

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

Date of Decision: 14 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, by her Decisions, 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 11 November 2020 (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 17 December 2020 for judicial review out of time.

5.In her affirmation in support of her application, she said that she did not receive the Court’s decision.

6.The Court had given directions that the applicant should submit documentary evidence to show the service of the Court’s decision and her grounds of appeal. The matter will, however, proceed even if the applicant does not provide the information as required. The applicant has not submitted the information as required. I shall now consider her application.

Discussion

7.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.

8.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.

9.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].”

10.By the Board’s Decision, the Board rejected her appeal and affirmed the Director’s Decision. The Board found that the applicant’s evidence was not plausible or reliable; that she did not seek protection immediately after she arrived in Hong Kong, not until 4 years after her arrival; that state protection was available to her and that internal relocation was an option open to her.

11.The Court, having examined the Board’s decision, considered that she had advanced no valid grounds for her application and concluded that she had no realistic prospect of success in the proposed judicial review.

12.The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. She is therefore unable to show that she has any realistic prospect of success in her intended appeal.

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