Re Denik Windarti

HCAL 77/2019

[2022] HKCFI 2131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 77 OF 2019

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

Date of Decision:  27 July 2022

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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 by remaining in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 Form CALL-1 dated 20 April 2022 (the “Court’s decision”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended judicial review. The deadline for her to file her notice of appeal is within 14 days after such order[1].

4.The applicant filed a summons on 27 June 2022 for appeal against the Court’s decision out of time.

5.In her affirmation in support of her application, she did not state any reason.

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. I shall consider the merits of the case.

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 applicant claimed that if refouled, she would be harmed or killed by her stepfather.

10.The Director found that her claim was not substantiated and refused her application. She appealed to the Board.

11.The Board observed that the applicant had not seen her stepfather for more than ten years since the last incident in 2008. She was able to live with her mother and grandmother whenever she returned to Indonesia, which showed that she was not as feared as claimed [26]-[27]. The Board also noted that, in the alleged attacks, the applicant was able to fend off and escape from her stepfather. On her own evidence, the Board found that her stepfather had no intention to hunt her down to kill her [28]. It further considered that there was no evidence as to the current status of her stepfather, whether he was still alive and living in the applicant’s house [30]. Thus, the Board found that the applicant’s claimed fear was remote and unreal. In any event, internal relocation to cities like Surabaya or Jakarta and state protection were both available to the applicant [31]-[40]. For these reasons, the Board rejected the applicant’s claim and dismissed her appeal. The references refer to the Board’s Decision.

12.There is no valid ground to challenge the Board’s Decision. Nor can she point out any error on the part of this Court in the assessment of her application.

13.There is no realistic prospect of success in her intended appeal. I therefore refuse to extend time for her to appeal and I dismiss her application.

The applicant was unrepresented.