Re Fitri Kristiana

HCAL 2732/2018

[2021] HKCFI 3243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2732 OF 2018

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

Date of Decision: 9 November 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”) and the Board dismissed her appeal (the “Board’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 on 21 October 2021 applying for extension of time to appeal against the Court’s decision.

5.In her affirmation in support of her application, she said that she did not receive the court’s letter with the Court’s decision. She only came to know that her application was dismissed from the case officer. She had to obtain assistance from the NGO officer. She considered that the Board had not considered her dangerous situation in her own country.

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 the evidence, rejected her appeal and affirmed the Director’s Decision. In the following paragraphs of the Board’s Decision, the Board recorded:

“65. … The Board has concluded the Appellant has not told the truth in relation to her claims that she was harmed or assaulted by her husband and escaped from her home in Indonesia, and that she has since been threatened by her husband while she has been living in Hong Kong.

66. … The Board does not accept the Appellant’s relationship with her husband has broken down for the reasons she has claimed, and the Board does not accept the Appellant’s husband has threatened the Appellant on the telephone that he will harm her, or beat her, or burn her or kill her if she returns to Indonesia.

68. …the Board considers the Appellant would not be at risk of any harm if she returned to Indonesia. The Board finds that there is not a real risk the Appellant would face any of the proscribed forms of harm should she return to Indonesia.”

10.It is obvious that the Board rejected her factual evidence in support of her claim.  She has no factual basis for her claim.

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