Re Aligo Alma Carlos

HCAL 2292/2018

[2022] HKCFI 3452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2292 OF 2018

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

Date of Decision:  24 November 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 staying in Hong Kong without permission 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”). 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 Order dated 20 September 2022 (“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 31 October 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application she said she did not receive the Court’s decision. She still has severe problems in her country and she will be killed if she returns. According to the record, the Court’s decision was sent to the applicant at her last known address on 20 September 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 4 October 2022. The applicant is late for 27 days. I shall now consider the merits of her 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 husband, Nestar Aligo Jr.

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

10.Having considered the evidence, the Board identified several inconsistencies in her claim. For example, she was inconsistent as to the forms and frequency of her husband’s threats [67]-[68]; the delay in seeking protection undermined her credibility [69]-[70]; her behavior of contacting her husband contradicts with the behavior of someone who feared a risk of harm [71]; and her husband had never inflicted any harms on her or her family [72]. Assessing these evidence accumulatively, the Board refused to accept the applicant’s claim [74]. Her appeal was therefore dismissed. The references refer to the Board’s Decision.

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.