Yeni Astuti and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 548/2024

[2025] HKCFI 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 548 OF 2024

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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. The mother is aged 58 and her son, 25, was born in Hong Kong. This is their joint application for extension of time to appeal the Court’s Judgment.

2.The 1^st 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. She had given birth to the 2^nd applicant.

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 Decision.

4.By Judgment dated 14 October 2024 (“the Judgment”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

5.The Judgment was sent to the applicants’ last known address on 14 October 2024 without being returned by the Post Office. They were deemed to receive the Judgment.[1]

6.Time for them to file their notice of appeal expired on 28 October 2024.

7.In her summon filed on 16 January 2025, the 1^st applicant for herself and on behalf of her son asked for extension of time to file the notice of appeal. In her affirmation in support of her application, the 1^st applicant did not give any explanation for her delay.

8.The applicants’ application for appeal is late for more than 2 months.

Discussion

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

10.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.

11.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 applicants’ claim was based upon the 1^st applicant’s allegation that if refouled, , they would be harmed or even killed by the family members of the 1^st applicant because she gave birth to the 2^nd applicant out of wedlock. The 2^nd applicant also feared discrimination for being unable to fit into the Filipino culture.

14.The Director rejected their application for the reason that their claim was not substantiated. They appealed to the Board.

15.The Board concluded that the 1^st applicant was not a truthful witness and it rejected her evidence. The Board accepted that the 2^nd applicant was born out of wedlock. It dismissed the appeal because the 2^nd applicant’s claim was unfounded.

16.The applicants have raised no valid ground to challenge the Board’s finding of the facts.

17.There is no realistic prospect of success in their intended appeal.

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

The applicants are unrepresented.