Re Alapee Azadi Begum

HCAL 2721/2018

[2021] HKCFI 2993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2721 OF 2018

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

Date of Decision: 15 October 2021

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D E C I S I O N

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The application

1.The applicant’s non-refoulement claim was made together with her daughter.  Their applications were rejected by the Director and the Torture Claims Appeal Board on appeal.  In the application for leave to apply for judicial review of the Board’s Decision, only the mother filed the application.  What follows only refer to the mother’s applicant described as “the applicant”.

2.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”). 

3.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. At the hearing, she withdrew her appeal for the reason that it was safe for her and her daughter to return to Bangladesh. The Board approved her application and at the same time confirmed the Director’s Decision (the “Board’s Decision”).

4.The applicant then took out an application for leave to apply for judicial review against the Board’s Decision.

5.By Order dated 16 July 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. 

6.The applicant filed a summons on 30 September 2021 applying for extension of time to appeal against the Court’s decision.

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

Discussion

8.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.

9.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.

10.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].”

11.The Board, having considered that she had made the decision of withdrawing her appeal of her own free will, knowing the consequences of her decision, approved her application.

12.The applicant has not raised any viable ground 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.

The applicant was unrepresented.