Suyono Indah Wati and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2272/2019

[2025] HKCFI 3618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2272 OF 2019

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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.  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 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 applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

4.By Judgment dated 1 April 2025 (“the Judgment”), the Court dismissed their 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 1 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 15 April 2025.

7.In her summon filed on 2 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 said that she did not agree with the Judgment.

8.Her application for appeal is late for 16 days.

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.

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 family members and villagers as the 1st applicant had given birth to her daughter out of wedlock.

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 facts were accepted.  However, it further found that she will not be subjected to any harm if she returns to her country.  Besides, state protection will be available and internal relocation will be viable.

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

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.

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.