Re Endah Retnosari

HCAL 660/2019

[2022] HKCFI 3098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 660 OF 2019

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

Date of Decision:  21 October 2022

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D E C I S I O N

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The application

1.The applicant and her daughter are illegal immigrants by staying in Hong Kong without permission and she and her daughter jointly lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered the applicant’s 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 applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision. For reason unknown, her daughter did not join in this application.

3.By Order dated 15 July 2022 (“the Court’s decision”), the Court dismissed the applicant’s application for the reason that there was no realistic prospect of success in her intended application.

4.The applicant filed a summons on 23 September 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application, the applicant said she only received the Court’s decision from the Immigration Department after the appeal time limit. She is a single parent and it is difficult for her to concentrate on this matter. According to the record, the Court’s decision was sent to the applicant at her last known address on 15 July 2022.

Discussion

5.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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. The deadline for her appeal is 29 July 2022. The applicant is late for 1 month and 3 weeks. I shall first consider the merits of the case.

7.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].”

8.The applicant claimed that, if refouled, she would be harmed or killed by her father Samin.

9.The Director refused her application because her claim was unsubstantiated. She appealed to the Board.

10.The applicant and her daughter were legally represented before the Board. Having considered the evidence, the Board found that the applicant and her daughter would not face real risk of harm upon their refoulement.

11.The applicant has not been able to raise any valid reason to show that she has a 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.