Chornelia Ismayasari and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1169/2019

[2024] HKCFI 2093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1169 of 2019

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D E C I S I O N

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The application

1.The applicants are mother and son and they are illegal immigrants by staying in Hong Kong without permission. They lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they 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 Decisions.

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 7 May 2024 (“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.The Court’s decision was sent to the applicant at their last known address on 7 May 2024 without being returned by the Post Office. They are deemed to receive the Court’s decision[1].

5.The deadline for her to file her notice of appeal is 21 May 2024.

6.In her summon filed on 8 July 2024, the applicants asked for extension of time to file their notice of appeal. In her affirmation in support of their application, the 1^st applicant said she and her son want to stay in Hong Kong. Her son needs special care and she needs special medical care for her health. They need a decent life.

7.The applicants’ application is out of time for more than one month. The 1^st applicant said she did not know how to deal with the Court’s decision.

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 their 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 applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by the 1^st applicant’s family because of the birth of the 2^nd applicant and by the loan shark due to an outstanding loan taken out by the 1^st applicant’s husband. Besides, both applicants were under medical treatments in Hong Kong.

13.Having considered the evidence, the Board found that the 1^st applicant’s family would not harm them and they would have state protection and medical treatment in Indonesia and her son, the 2^nd applicant, would also have medical care and appropriate education in Indonesia. It therefore dismissed their appeal.

14.The applicants have raised no valid ground to challenge the Board’s Decision. Thus, there is no realistic prospect of success in their intended appeal.

15.In the circumstances, I refuse to extend time for the applicants to file their notice of appeal out time. Accordingly, I dismiss their application.

The applicant was unrepresented.