RE RINA WATININGSIH AND ANOTHER

HCAL 1336/2018

[2021] HKCFI 1651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1336 OF 2018

_____________

_____________

_____________

D E C I S I O N

_____________

1.  The applicants are mother and her five-year-old daughter. I shall refer to the first applicant as the applicant and the second applicant as applicant daughter, unless otherwise stated below.

2.  The applicant filed a summons dated 17 May 2021 for extension of time to appeal against the Court’s decision as described below.

3.  The applicant is an Indonesian national.  She arrived in Hong Kong in 2013 as a domestic helper.  Her employment contract was terminated.  She overstayed and surrendered to the Immigration Department on 13 June 2015.  She gave birth to the applicant daughter on 14 June 2015.  She lodged a non-refoulement claim on behalf of herself and her daughter with the Immigration Department.

4.  The Director rejected their claim and she appealed to the Appeal Board/Non-refoulement Claims Petition Office (the “Board”).  The Torture Claims Board considered their appeal and by its Decision dated 23 February 2018 (“the Board’s Decision”), it refused their appeal and affirmed the Director’s Decision.

5.  The applicant applied to the High Court for leave to apply for judicial review of the Board’s Decision.  Having considered the merits of the case, by Order dated 30 March 2021 (“the Court’s decision”), the Court found that there was no merit in their proposed judicial review.  The Court dismissed their application for leave to apply for judicial review.

6.  In her affirmation and her letter to the Court in support of this application, the applicant said that she does not understand English.  She asked around about the Court’s decision and she was out of time.  She now has given birth to another daughter from his boyfriend.  Her newborn daughter is a resident of Hong Kong.  She has to stay in Hong Kong to look after her daughter.

7.  By virtue of Order 32, rule 11A(1)(a) of the RHC, I decide to determine this application without an oral hearing.

8.  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].”

9.  The Board considered the applicant’s evidence and found the facts below.  See paragraph 11 of the Court’s decision.

(1) Her evidence given to the Director and before the Board was inconsistent in various aspects.

(2) The Board did not accept that her father had any creditor. [45 & 51]

(3) The Board found her evidence in relation to her husband’s threat was vague and unpersuasive. [65]

(4) The Board found that the applicant manufactured the claimed threats and adverse interest from her husband in an attempt to provide a basis for her non-refoulement claim. [72]

(5) The Board considered the applicant daughter’s case and found that although this would be a social stigma, it did not constitute any real risk of harm or discrimination amount to BOR 3 risk or torture. [82]

(6) There would be government or non-government services available for women with children in Indonesia. [84]

(7) The applicant would be able to find employment and accommodation to support herself and her daughter and they would also have support from the applicant’s family or relatives in Indonesia. [85]

10.  There is no evidence to show that the Board erred in its finding of the facts or the application of the law to her case.

11.  As to her newborn daughter, the Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the applicant since such rights are disengaged by section 11 of the Ordinance.  See Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 §90.  Furthermore, this ground was not before the Board and it should not be considered by the Court at this stage.  See Nupur Mst v Director of Immigration [2018] HKCA 524 §14.

12.  Since there is no reasonable prospect of success in her intended appeal, I decline to extend time for her intended appeal.

13.  I dismiss her application.