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

HCAL 1649/2019

[2024] HKCFI 1963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1649 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 6 June 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 Court’s decision was sent to the applicant on 6 June 2024 without being returned by the Post Office. She was deemed to receive the Court’s decision.[1]

5.The deadline for her to file her notice of appeal is 20 June 2024.

6.In her summon filed on 21 June 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 she did not receive the Court’s decision and she has serious objection about the Court’s judgment, dismissing her application.

7.Her application for appeal is late for only 1 day. If she has any merit in her application, I shall accede to her request. However, if there is no merit in her application, as a matter of principle, I shall not grant any extension of time for her to pursue a futile application.

Discussion

8.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[2].

9.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.

10.I shall consider the merits of her case.

11.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].”

12.The applicant’s claim was based upon her allegation that if refouled, she would be harmed or even killed by her husband and be arrested by the police because of the death of her husband’s woman.

13.The applicant appeared before the Board and she refused to give evidence in support of her claim. The Board was unable to ask her on the country of origin information. Having considered the evidence available to the Board, the Board finds that she will not be subjected to any of the applicable risks if she returns to Nepal, her country. Further, the Board finds that she may relocate to live somewhere safely in Nepal. The Board dismissed her claim on Torture risk, BOR 3 risk and Persecution risk. She has not appealed against the Board’s Decision.

14.The applicant appealed the Director’s Decision on BOR 2 risk. She was late in filing her notice of appeal. She had given her explanation for her delay. However, the Board did not accept her explanation.

15.The applicant has raised no valid ground to challenge the Board’s finding of the facts in relation to her claim on Torture risk, BOR 3 risk or Persecution risk. Nor is she able to give acceptable explanation for her delay in her filing of the notice of appeal on her claim on BOR 2 risk.

16.There is not any realistic prospect of success in her intended appeal.

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

The applicant was unrepresented.