Fontanilla Virginia Gao an v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 806/2019

[2024] HKCFI 1317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 806 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 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 25 January 2024 (“the Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application. The deadline for her to file her notice of appeal is 9 February2024.

4.In her affidavit filed on 20 February 2024, the applicant said she asked for extension of time to appeal. She did not state any explanation for her delay.

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[1].

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 applicant is late for 11 days. However, I shall consider the merits of her 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 claim was based upon her allegation that if refouled, she would be maltreated by her husband because of his bad temper and violent behaviour.

10.Having considered the evidence, the Board took the view that it is a classic case of domestic violence that is quite prevalent all over the world. Furthermore, the Board found that state protection is available to her and internal relocation is viable option open to her.

11.The applicant has no explanation for her delay. She is not able to raise any valid reason to challenge the Board’s Decision. Thus, 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.