MS. SUMARSIH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL125/2016

[2019] HKCFI 3133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAL LIST No. 125 of 2016

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Extension of time to appeal refused.

Observations for the Applicant:

     The applicant came to Hong Kong on 31 March 2013. She was permitted to take up employment as a domestic helper until 23 September 2014. In December 2013, she was convicted for taking up unapproved employment and other offences. She was sentenced to 3-month-imprisonment. Her domestic helper contract was terminated then.

     She lodged the non-refoulement claim while serving sentence. She was discharged from prison on 25 February 2014 and detained by the Immigration Department pending further action.  She was released on recognizance in April 2014 pending the outcome of her claim.

     The basis of her claim was that she was the guarantor of a loan (50 million Rupiahs) which her husband borrowed from a loan shark. She feared that she might be harmed or killed by the loan shark if she returned to Indonesia. Her husband was unable to repay.

     Her non-refoulement claim was rejected by the Director of Immigration on 16 April 2015. Her appeal to the Torture Claim Appeals Board was rejected on 21 June 2016. She filed the leave application on 11 July 2016.

     This court refused leave for judicial review on 22 November 2016. On 9 August 2019, she lodged a summons seeking extension of time to appeal. She was out of time for about 21 months.

Consideration of application

     In the summons, the applicant alleged that she had never received the decision of this court. She had changed her address and had not informed this court. She only informed the Immigration Department. She asked this court to grant the extension of time.

During the hearing on 10 October 2019, the applicant stated the following:

a) She could not remember the date of moving to the new address at San Lee Uk Tsuen, Yuen Long. She lived there for less than a year.

b) Before that in 2018, she lived at Nai Wai, Yuen Long for several months. She had informed the Immigration Department.

c) In 2016—2017, she lived at the address given to this court, i.e., Rm C, Flat F, 6/F., Far East Mansion, 5-6 Middle Road, Tsim Sha Tsui.

d) This court pointed out to her that in November 2016, the decision of this court was sent to her address at Tsim Sha Tsui, the applicant then said that the landlord kept the key of the letter-box. The landlord did not inform her of the letter from this court.

e) This court pointed out to her that this was not her reason in the summons, she then explained that she intended to inform the court about the landlord during the hearing.

f) The applicant confirmed that the Immigration Department informed her of the decision on 23 July 2019.

     I find the applicant unreliable in her reasons. She only made up the explanations when she was contradicted. In my view, she has a duty to update her address. I reject her reasons.

     The applicant is out of time for about 21 months. She must have cogent reasons before extension of time would be granted. The applicant fails to provide any.

Conclusion

     I refuse her application for extension of time to appeal against the refusal of leave for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1