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

HCAL 1538/2020

[2024] HKCFI 1621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1538 OF 2020

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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 12 April 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 26 April 2024.

5.In her summon filed on 7 May 2024, the applicant asked for extension of time to file her notice of appeal.  In her affirmation in support of her application, the applicant said:

“… I believe that the decision made by High Court Judge Bruno Chan was reached unfairly as I was not afforded an adequate opportunity to clarify my case and present the full extent of my situation in my country. …”

6.She is 11 days’ late for her appeal application.

Discussion

7.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].

8.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.

9.I shall consider the merits of her case.

10.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].”

11.The applicant’s claim was based upon her allegation that if refouled, she would be harmed or even killed by her ex-husband and his fellow members of the Awami League.

12.Having considered the evidence, the Board found that the applicant’s evidence was illogical and concluded that she would not be subjected to any real risk of being harmed or killed if she returned to her country.

13.The applicant has named the wrong Judge, who had dealt with her application.  Before the Court, she said that she might be wrong herself and that she wanted to stay in Hong Kong.  It is therefore incorrect for her to say that she was not given the opportunity of clarifying her case before the Court.

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.