Penol Sally Barsolaso and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 765/2019

[2024] HKCFI 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 765 OF 2019

_____________

_____________

_____________

D E C I S I O N

_____________

The application

1.The applicants are mother and son, a minor born on 27 August 2014. They are illegal immigrants by staying in Hong Kong without permission and they jointly lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and their appealed to the Torture Claims Appeal Board (“the Board”). Having considered their evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 3 October 2023 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

4.In the 1^st applicant’s affirmation filed on 26 October 2023, the 1^st applicant said that she does not agree with the Court’s decision. She was late because she did not have the filing fee.

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.

7.The deadline for her appeal is 18 October 2023. The applicants are late for 8 days only. I shall consider the merits of their 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 applicants’ claim was based upon the 1^st applicant’s allegation that if refouled, they would be harmed or killed by the 1^st applicant’s ex-boyfriend Allan De Vera. The Director rejected their application as their claims were unsubstantiated. The Director further found that she and her son are the nationals of the Philippines [35]. They appealed to the Board.

10.Having considered the evidence, the Board concluded that the applicants’ appeals were devoid of merits. The 1^st applicant’s evidence was rejected. It further found that state protection was available to them and internal relocation was a viable option for them. Although the Board considered the applicants’ claim as a composite claim, since the Board had rejected the 1^st applicant’s evidence, there is no factual basis to support the 2^nd applicant’s claim and the Court did not find any child-specific issue which was not brought to the Board’s attention because of lack of legal representation.

11.The applicants have not been able to raise any valid reasons to challenge the Board’s Decision of the court’s Decision. There is not any realistic prospect of success in their intended appeal.

12.In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their application.

The applicants were unrepresented.