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

HCAL 1408/2019

[2024] HKCFI 1616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1408 of 2019

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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 26 February 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.

4.The deadline for her to file her notice of appeal is 12 March 2024.

5.In her affirmation filed on 8 April 2024, the applicant said her life would be in danger if she return to her country.  The applicant is about 3 weeks out of time.

Discussion

6.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].

7.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.

8.I shall consider the merits of her case.

9.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].”

10.The applicant’s claim was based upon her allegation that if refouled, she would be harmed or killed by her father.

11.Having considered the evidence, the Board did not accept that there is any real risk of her being harmed if she returns to Indonesia.

12.The applicant said she considers that the Court had failed to consider all applicable grounds of her claim and, in particular, BOR 2 risk, right to life.

13.The Court had considered the Board’s Decision and found that the Board had considered all the applicable grounds, including the BOR 2 risk.  Furthermore, the Board found that state protection will be available to her and internal relocation is a viable option if she returns to Indonesia.

14.The applicant 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.

15.In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

The applicant was unrepresented.