Lumapad Jocelyn Ariola and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2367/2019

[2025] HKCFI 3214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2367 OF 2019

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BETWEEN

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D E C I S I O N

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THE APPLICATION

1.The applicants are mother and daughter, a minor. This is their joint application.

2.The 1^st applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim for herself and on behalf of her daughter, who was born in Hong Kong, with the Director of Immigration (“the Director”). The Director rejected their applications 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 their appeal and affirmed the Director’s 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 Decision.

4.By Judgment dated 29 April 2025 (“the Judgment”), the Court dismissed their joint application for the reason that there was no realistic prospect of success in their intended application.

5.The Court’s decision was sent to the applicants’ last known address on 29 April 2025 without being returned by the Post Office. They were deemed to receive the Judgment.[1]

6.The deadline for them to file their notice of appeal is 13 May 2025.

7.In her summon filed on 14 May 2025, the 1^st applicant asked for extension of time to file the notice of appeal. In her affirmation in support of her application, she did not state the reason.

8.Her application for extension of time for the appeal is late for 1 day only.

Discussion

9.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].

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. The 2^nd applicant relies on the facts of her mother’s claim in support of her claim.

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, she will be harmed or killed by her husband because of her extra-marital affairs in the Philippines and she had given birth to a son with her partner.

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 applicants’ claimed fear was not substantiated as the 1^st applicant had her family’s support, state protection and internal relocation is viable.

16.The Board had also considered the 2^nd applicant’s claim separately as she is a minor.

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

18.The applicants have not raised any valid ground to challenge this Court’s Judgment.

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

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

21.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.