RE RINAWATI AND ANOTHER

HCAL 648/2019

[2022] HKCFI 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 648 OF 2019

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D E C I S I O N

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1.  The 1^st applicant (A1)  is an Indonesian.[1] She came to Hong Kong as a domestic helper on 19/8/2014. She gave birth to the 2^nd applicant (A2)  on 19/12/2016. She overstayed until 21/12/2016 when she was arrested. She raised the non-refoulement claim of this case on 17/3/2017.

2.  A1 feared that she might be harmed or killed by a loan shark if she returned to Indonesia. 

3.  In 2006, A1 borrowed from a loan shark.  She could not recall the exact amount but it should have been accumulated to more than 100 million IR.[2]  The monthly interest rate was 20%.  She had signed a loan agreement to remit money from Hong Kong for repayment.  She did not repay the loan.  She used up her salary for the agency fee and the medical expenses of her parents.  Since 2007, the loan shark kept on threatening her on the phone.  They also threatened her parents.  In 2014, she returned to Indonesia for 3 weeks to visit her sick parents.  Her contract was terminated in the end of 2015.  She stopped all contacts with her parents.  She only raised her claim in 2017 after she was arrested because she was afraid.

4.  The Director dismissed claims of both applicants on 23/3/2018.  Her appeal was dismissed by the TCAB on 6/12/2018.

5.  The adjudicator found that A1 was not credible and her evidence was inconsistent.  The applicant was unable to recall the amount of the loan.  She could not tell the name of the loan shark.  She told the adjudicator that there was no written agreement.  There was no detail term but just 20% monthly interest.  However, in her NCF, she stated that she had signed a written agreement to repay after the first 7 months.  She did not have a copy of the agreement.  She could not tell the medical conditions of her parents.  She returned to Indonesia to visit her parents in 2014 without any problem.  The telephone threat started in 2007 but she only changed her number in 2015.  The adjudicator concluded that there no real risk of harm.

6.  A1 had not informed her parents about the birth of A2.  She had not contacted her parents since 2015.  The fear that her parents would reject A2 was pure speculation.  The adjudicator accepted that both applicants would face some discrimination being a single mother and an illegitimate child.  The adjudicator did not accept this would constitute any real risk of harm in the context of non-refoulement protection. There were social services and NGO providing assistance to single mothers.

7.  On 7/3/2019, A1 applied for leave for judicial review of the TCAB decision.  She was out of time for one day.  In her affirmation, she did not specify any error in the TCAB decision.  She did not include A2 in the leave application.

8.  A1 wrote to this court on 19/3/2021, she complained that the TCAB was unfair to find her not credible.  The TCAB relied on news reports which were not official.  She could not fully understand the TCAB decision.

9.  A1 attended a hearing on 8/11/2021, she had no further update or complaint.  She could not explain the delay.  She applied to add A2 to the leave application. 

10.  Given that the delay was only one day and that it would be in the interest of both applicants for their claims to be dealt with together, I exercise the discretion to allow the amendment by adding A2 to the Form 86.[3]

11.  In the TCAB decision, the nationality of A2 was not in issue [4]. The adjudicator rejected the evidence of A1.  She concluded that there was no threat from any loan shark.  A2’s claim was premised entirely on A1’s claim, she could not give any evidence in relation to the threats or the surrounding circumstances.  The adjudicator concluded that there were institutions which could provide integrated services to both applicants.  She concluded that the possible discrimination would not amount to any risk of harm in the context of non-refoulement protection.  I agree with this conclusion. 

12.  There was no issue specific to A2 which had not been advanced or considered by the TCAB because of lack of legal representation.  I treated the absence of legal representation for A2 as a mere irregularity.  Legal representation would not serve any useful purpose as the intended judicial review was without merits.[5]

13.  As to the complaints in her letter dated 19/3/2021, I do not find any unfairness in the TCAB proceedings.  A1 was given ample opportunities to answer questions assisted by an interpreter.  The adjudicator did not rely on any news reports.  She actually found A1’s evidence implausible.  I do not see any substance in A1’s complaint.

14.  There was no good reason for extension of time for filing the leave application.  I refused to extend the time.  The intended judicial review is not reasonably arguable.  There was no reasonable prospect of success.  I refused leave for the intended judicial review on 26/1/2022.

15.  A1 filed a summons on 17/2/2022 for extension of time to appeal against the decision of this court.  She was more than one week out of time.  In her affirmation, A1 asserted that she does not have any income.  She does not understand English. 

16.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.[6]

17.  The application is out of time for more than a week.  She filled in the summons and affirmation in English.  They are reasonably comprehensible.  If the documents were not filled in by herself, at least, she could find language assistance.  Lack of income is not a strong reason for the delay.  She had not explain how this led to the delay.  In addition, the important issue at this stage is the merits of the intended judicial review [7].

18.  As set out in paragraphs 5-6 above, I agree with the TCAB decision.  A1’s evidence was not credible.  She failed to establish that there was real risk of harm.  The intended judicial review was of no merit. 

19.  Having considered all factors, I refuse the application for extension of time to appeal.