RE SITI AMINAH

HCAL 422/2019

[2022] HKCFI 1601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 422 OF 2019

________________________

________________________

________________________

D E C I S I O N

________________________

1.  This is an application for extension of time to appeal against my decision of 27 April 2022 refusing the applicant leave to apply for judicial review. Under Order 52 rule 3(4), the applicant had 14 days to file her appeal. She did not do so within the 14-day appeal period. By a summons dated 16 May 2022, the applicant seeks extension of time to appeal against that order. The applicant was 5 days late with her intended appeal.

2.  The applicant is a national of Indonesia and she came to Hong Kong in 2010 and worked as a domestic worker.  Her last employment contract was terminated prematurely on 24 May 2015 and she was permitted to stay in Hong Kong until 7 June 2015.  She did not leave Hong Kong and has overstayed in Hong Kong since 8 June 2015.

3.  The applicant surrendered to the Immigration Department for overstaying on 29 December 2016. She made a non-refoulement claim by way of written signification dated 1 August 2017.  An officer acting on behalf of the Director of Immigration rejected the applicant’s claim by a decision dated 24 May 2018.

4.  The applicant appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  against the immigration officer’s decision. The applicant appeared in person before the Board at the appeal hearing held on 23 November 2018.  By a decision dated 29 January 2019, the Board rejected the applicant’s non-refoulement protection claim.  The Board also found the applicant’s claims for protection from refoulement under BOR2 risk and BOR3 risk failed.  Full reasons were given by the Board in its decision. 

5.  On 14 February 2019, the applicant filed a Form 86, i.e. a notice of application for leave to apply for judicial review.  The intended judicial review was against the decision of the Board.

6.  I have set out the background of the applicant’s claim in the CALL-1 form.  My order was posted to the applicant on 27 April 2022.  She now claims that she did not receive this order on time and as a result she failed to comply with the 14-day time limit.

7.  The applicant was 5 days late with her intended appeal. In considering whether to extend time for appealing a decision refusing leave to apply for a judicial review, the court will have regard to the following factors:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the prospect of the intended appeal; and

(iv)  the prejudice to the respondent if an extension of time were granted.

8.  The applicant stated in her affirmation that she did not receive the court’s decision dated 27 April 2022.  In court, she further explained that when she applied for a judicial review, she was residing at an address at Castle Peak Road (“the old address”).  In October/November 2019, she moved to a new address in Yuen Long (“the new address”), hence she did not receive the court’s decision. She said a friend went to her old address on or about 15 May 2022 and informed her that there was a letter for her.  As soon as the applicant learnt of the result of the court’s decision, she took out the summons and applied for an extension of time to appeal, hence the summons dated 16 May 2022.

9.  For her intended appeal, the applicant submitted that her life was in danger in Indonesia.  Her sibling would kill her on her return to Indonesia.

10.  I accept the applicant’s explanation that she had moved to a new address after she applied for judicial review and she did not receive a copy of this court’s decision in time.

11.  The delay of 5 days is not a substantial delay. In my judgment, it is unlikely that there would be any prejudice to the respondent if an extension of time were granted.

12.  On the other hand, there is no merit nor any real prospect of success in the intended appeal.

13.  All matters taken into account, and having considered (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the prospect of the intended appeal; and (iv)  the prejudice to the respondent if an extension of time were granted, I find that it would be in the interests to grant an extension of time.

14.  For the reasons given, the application for an extension of time to appeal is approved, the applicant is given an extension of 14 days to apply to file her appeal against my decision of 27 April 2022.