Re Saldana Noema Walohan and Others

HCAL 1450/2018

[2021] HKCFI 2710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1450 OF 2018

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

Date of Decision: 23 September 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 and acting as guardian ad litem for the 2^nd and 3^rd applicants. They lodged a joint non-refoulement claim with the Director of Immigration (the “Director”). The Director rejected their joint application and they appealed to the Torture Claims Appeal Board (the “Board”). Having considered their 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 20 May 2021 (the “Court’s decision”), the Court dismissed their joint application for the reason that there was no realistic prospect of success in their intended application.

4.The applicants filed a summons on 3 September 2021 applying for extension of time to appeal against the Court’s decision. As the 2^nd and the 3^rd applicants’ cases depend on their mother, the 1^st applicant’s evidence applies to the 2^nd and 3^rd applicants’ cases.

5.In her affidavit in support of their application, the 1^st applicant said that she did not receive the Court’s decision. She had been detained in the detention centre and she was not aware that she had to inform the court of her change of address.

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 their appeal and affirmed the Director’s Decision. The Board accepted the 1^st applicant’s evidence at face value. However, according to her evidence, although she was molested by her father when she was 14 years old, there was no more harm by her father to her; that her family, having accepted her illegitimate son, would also accept her legitimate sons from Hong Kong if they returned to the Philippines; that there was simply no risk if they returned to the Philippines. See paragraphs 57-66 of the Board’s Decision. Based upon the findings, the Board rejected their claim on all of the risks.

10.Her reason in support of their application does not assist them.

11.The applicants have not raised any viable ground to show that either the Board or the Court was in error. Therefore, they have no realistic prospect of success in their intended appeal.

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

The applicants were unrepresented.