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

HCAL 1729/2019 and HCAL 1850/2023

(Heard together)

[2025] HKCFI 74

HCAL 1729/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1729 OF 2019

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AND

HCAL 1850/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1850 OF 2023

____________

____________

(Heard Together)

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DECISION

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The application

1.The 1^st applicant, aged 42, is the mother and the guardian ad litem of the 2^nd applicant, her son, aged 5. The applicants lodged their non-refoulement claims with the Director separately. The Director rejected their applications. Their appeals to the Board were also dismissed by the Board. On their applications for leave to apply for judicial review of the Board’s Decision, their applications were heard together by this Court. This is their joint application for extension of time for their appeal.

2.By Order dated 4 October 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.

3.The Court’s decision was sent to the applicants on 4 October 2024 without being returned by the Post Office. They are deemed to receive the Court’s decision.[1]

4.Time for them to file their notice of appeal expired on 18 October 2024.

5.In their summons filed on 13 November 2024, the applicants asked for extension of time to file their notice of appeal. In the 1^st applicant’s affirmation in support of their application, the 1^st applicant said she did not have the financial source to pay the High Court fees.

6.Their application for appeal is late for 26 days.

Discussion

7.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].

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. I shall consider the merits of their cases.

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 Board found that the 1^st applicant’s claim was unfounded. The Board further considered the 2^nd applicant’s claim, who was legally represented before the Board, and found that apart from the factual basis, there was no child specific issues which supported the 2^nd applicant’s claim. The Board therefore dismissed their appeals.

11.The applicants have failed to show that they have any realistic prospect of success in their intended appeal.

12.I refuse to extend time for them to file their notice of appeal and I dismiss their application.

13.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.