Cucun Cunayah and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2311/2018

[2023] HKCFI 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2311 OF 2018

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BETWEEN

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D E C I S I O N

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THE APPLICATION

1.This is the applicants’ joint application for extension of time to appeal against the Court’s decision as described below. The 2^nd applicant is a minor. The 1^st applicant is his guardian ad litem and he is not legally represented.

2.The 1^st applicant and the 2^nd applicant are mother and son. They are remaining in Hong Kong illegally. They made an application for non-refoulement protection to the Director of Immigration (“the Director”). By the Director’s Decision dated 31 July 2017 (“the Director’s Decision”), their application was rejected.

3.They appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).

4.By Decision dated 27 September 2018 (“the Board’s Decision”), the Board dismissed their appeal.

5.The applicants jointly filed Form 86 on 23 October 2018 for leave to apply for judicial review of the Board’s Decision.

6.By Form CALL-1 dated 22 September 2022 (“the Court’s decision”), the Court dismissed their application for the reason that their application does not have a realistic prospect of success. The deadline for the applicants to appeal the Court’s decision to the Court of Appeal is 7 October 2022. The delay is more than 4 months.

7.By Summons and Affirmation dated 21 February 2023, the applicants jointly applied to the court for extension of time to appeal the Court’s decision to the Court of Appeal.

8.In the affirmation of the 1^st applicant in support of their application, she said if she returns to Indonesia with her son, their life will be in danger as the loan shark will kill them because she will not be able to repay her debt. She asked the Court to allow her and her son to stay in Hong Kong.

DISCUSSION

9.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.

10.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.

11.11.  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].”

12.The applicants’ claims are based on the fear that, if refouled, they would be harmed or killed by the moneylender of the 1^st applicant’s father, Ayah.  In addition, the 1^st applicant feared that Ayah would force her to marry him.

13.The Director refused their application for the reason that their claims are not substantiated. The applicants appealed to the Board.

14.Having considered the evidence, the Board found that the 1^st applicant’s evidence was unreliable and not credible.  It also found that there was no evidence on Ayah’s influence.  In this light, the Board considered internal relocation was viable for the applicants.  Meanwhile, the Board found that the country of origin information denoted that state protection would be available to them; in particular, there were organizations which provided assistances to mothers and children.

15.The applicants have not given any reason for their delay. On the authority of AW, their application can be dismissed. On the merits of their application, they have no merits in support of their application.

16.There is no realistic prospect of success in their intended appeal against the Court’s decision.

17.The absence of legal representation on behalf of the 2^nd applicant in the present application is treated as an irregularity under Order 2 of the RHC without rendering the proceedings a nullity. I dismiss the applicants’ joint application.

The applicant was unrepresented.