Nanik Susanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2593/2018

[2023] HKCFI 1371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2593 OF 2018

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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 29 July 2020 (“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.In her affirmation filed on 3 May 2023, the applicant said that the Court’s decision is unfair as she was not given the chance to clarify her case and she did not receive the Court’s decision. According to the record, the Court’s decision was sent to her last known address on 29 July 2020 without being returned from the Post Office.

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 on paper 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 12 August 2020. The applicant is late for more than two and a half years. I shall 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’s claim was made on the basis that, if refouled, she feared that she would be harmed or killed by debt collectors as she was unable to repay the loan.

9.The Director of Immigration refused her application for the reason that her claim was not substantiated. She appealed to the Board.

10.Having considered the evidence, the Board did not accept that she was in fear of being harmed or killed by the debt collectors if she returned to Indonesia. The Board also found that she was evasive in giving her evidence. State protection was available to her and relocation was an option open to her. The Board therefore dismissed her appeal.

11.The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is not any 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.