Rina Rulyawati and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2227/2018

[2025] HKCFI 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2227 OF 2018

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D E C I S I O N

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The application

1.The 1^st applicant and the 2^nd applicant are mother and son, aged 15.

2.The applicants are an illegal immigrants by staying in Hong Kong without permission and they lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their applications by 2 Decisions. The 1^st Decision relates to Torture risk, BOR 3 risk and Persecution risk, which they did not appeal; and the 2^nd Decision relates to BOR2 risk, which they appealed to the Torture Claims Appeal Board (“the Board”). Having considered their evidence, the Board, by its Decision (“the Board’s 2^nd Decision”), rejected their appeal and affirmed the Director’s 2^nd Decision.

3.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 2^nd Decision.

4.By Order dated 9 July 2024 (“the Court’s decision”), the Court dismissed the applicants’ application for the reason that there was no realistic prospect of success in their intended application.

5.The Court’s decision was sent to the1^st applicant on 9 July 2024 without being returned by the Post Office. She is deemed to receive the Court’s decision.[1]

6.Time for them to file the notice of appeal expired on 23 July 2024.

7.Their application for appeal filed on 20 November 2024 is late for more than three and a half months.

8.In their summons filed on the same day, the applicants applied for extension of time to file their notice of appeal.

9.In the affirmation in support of their application, the 1^st applicant simply said that she did not agree with the Court’s decision, without giving any explanation for her delay.

Discussion

10.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].

11.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. I shall consider the merits of their case.

12.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].”

13.The 1^st applicant claimed that if refouled, she will be in danger of being subjected to torture in Indonesia as she had a Pakistani boyfriend and had a child born out of wedlock with him, bringing disgrace to the family.

14.The Director rejected her claim because it was not substantiated. She appealed to the Board.

15.Having considered the evidence, the Board concluded that the 1^st applicant’s claim was unfounded. The Board further considered the child’s claim and found that the 2^nd applicant would not be subjected to any applicable risk if he returned to Indonesia with the 1^st applicant. The Board therefore dismissed their appeal.

16.There is no valid reason from the applicants to challenge the Board’s Decision. It is trite law that the Court should not interfere with the Board’s findings without good reason.

17.There is no valid reason from the applicants to challenge the Court’s decision.

18.In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their application.

19.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

The applicants were unrepresented.