Esmiralde Naguimbing Ruz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 23/2019

[2023] HKCFI 2109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 23 OF 2019

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BETWEEN

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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 he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.This Court, by Form CALL-1 dated 16 January 2023 (“the Court’s decision”) refused his application.

3.The applicant filed a summons and an affirmation on 13 July 2023, applying for extension of time for filing the notice of appeal.

4.In his affirmation, he said that it was unreasonable and unfair for the Director not to re-open his claim and the Board for dismissing his appeal against the Director’ decision. He said that he had been detained in the Tai Tam Gap Correctional Institution for not receiving the Director’s Decision and the Board’s Decision on time. He also said that he had also changed his address, therefore he did not receive the Court’s decision.

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.

7.The deadline for his appeal is 31 January 2023. The applicant is late for more than 6 months. I shall, nevertheless, consider the merits of his case.

8.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].”

9.The applicant’s non-refoulement claim to the Director was made on 30 May 2015. He was legally represented by the duty lawyer. His lawyer had asked for extension of time for him to submit his non-refoulement claim form (NCF). The Director acceded to the request and extended time for the applicant to submit his NCF. However, the applicant failed to do so. His duty lawyer then informed the Director that he was unable to have instructions from the applicant and decided to cease acting for him.

10.The Director of Immigration, in accordance with the Ordinance, informed the applicant that since he had failed to submit the NCF within time as directed, his claim application was deemed to have been withdrawn.

11.The applicant applied to the Director for re-opening his claim application. He gave the reasons for not submitting the NCF, saying that he had to take care of his 2 babies and he could not afford the transportation fee to the interview. The Director considered that his reasons were not acceptable and rejected his application for re-opening his non-refoulement claim application.

12.The applicant appealed the Director’s decision to the Board. Having considered the applicant’s evidence, the Board, by the Board’s Decision, affirmed the Director’s decision, having considered that those reasons given by the applicant were unacceptable as there were governmental and non-governmental organizations available to him if he asked for assistance. It was unreasonable for him not to ask for assistance under the circumstances he described.

13.Those reasons given by the applicant for this application do not assist him. He had received the Director’s Decision and the Board’s Decision. He did not say when he was incarcerated in the Tai Tam Gap Correctional Institution. As to his change of address, he has the burden to update the court’s record of his new address. The Court of Appeal in Re: Zamora Rowel Espiritu [2022] HKCA 1883, Hon Barma JA and Au JA, 30 December 2022 held:

“18. In any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.”

14.Even now, he has not been able to raise any reason to challenge the Board’s Decision.

15.In the circumstances, I find that the applicant has not been able to show that there is any realistic prospect of success in his intended appeal.

16.In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

The applicant was unrepresented.