Beslumbre Shenyl Lavandero v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2627/2019

[2025] HKCFI 2601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2627 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 Judgment dated 18 March 2025 (“the Judgment”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended application.

4.The Judgment was sent to the applicant on 18 March 2025 at her last known address without being returned from the Post Office. She is deemed to receive the Court’s decision.

5.The time for filing the notice of appeal expired on 1 April 2025[1].

6.By summons filed on 3 April 2025, the applicant applied for appeal against the Court’s decision out of time. She was late for 2 days only.

7.In her affirmation in support of her application, the applicant said that she disagreed with the Judgment, but she did not explain why she had delayed her application.

Discussion

8.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].

9.The Court will 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 her case.

10.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].”

11.The applicant claimed that if refouled, she will be harmed or killed by her family because she has given birth to a son out of wedlock.

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

13.Having considered the evidence, the Board dismissed her appeal for the reason that although it accepted that her father is a violent man, however, family unity is not a valid ground, state protection will be available and internal relocation is viable if she returns to the Philippines.

14.There is no valid reason from the applicant to explain her delay and to challenge the Court’s decision.

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

The applicant was unrepresented.