Re Sujiyem

HCAL 2455/2018

[2023] HKCFI 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2455 OF 2018

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

Date of Decision:  5 January 2023

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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 Decisions (“the Board’s Decisions”), rejected her appeal and affirmed the Director’s Decisions.

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 Second Decision.

3.By Order dated 1 November 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 29 November 2022 applying for extension of time to appeal against the Court’s decision. In her affirmation in support of her application she said she is late because she does not understand the court procedure.

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 15 November 2022. The applicant is late for 14 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 the loan shark or her husband.

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

10.Insofar as the verbal threats from her husband was concerned, the Board found that, on the applicant’s evidence, the said threats were not serious and that her husband had no real intention to harm or even kill her [22]-[28]. The alleged ill-treatments from her husband, if any, failed to attain a minimum level of severity [32]. As to the threats from the loan shark, the Board found that he was no serious in materializing the threats as he never attempted to locate the applicant [33]-[39]. In any event, state protection and internal relocation were both viable alternatives [40]-[48].

11.The Board considered the applicant’s evidence in relation to her BOR 2 risk. It found that her last contact with the loan shark was three years ago and her husband two years ago. This indicated that the loan shark and her husband no longer had any adverse interests in her [5]-[12]. The references refer to the Board’s Second Decision.

12.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.

13.In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

The applicant was unrepresented.