RE TRI ISTIKARINI

HCAL 2858/2018

[2022] HKCFI 821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2858 OF 2018

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D E C I S I O N

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1.  The applicant (“the Mother”)  is an Indonesian. She came to Hong Kong as a domestic helper on 7/6/2013. Her contract was terminated early. She overstayed until 31/3/2017 when she was arrested. She raised the non-refoulement claim of this case in April to June 2017 with many written representations.

2.  She gave birth to her daughter (the 2^nd applicant in HCAL792/2020)  on 26/8/2018.  She filed a non-refoulement claim on behalf of her daughter on 17/12/2018. 

3.  The Mother feared that she and her daughter might be harmed or killed by the loan shark.  The 2^nd applicant might be ill-treated by her family members and rejected by others if she returned to Indonesia. 

4.  In 2009 the husband of the applicant told her that he had borrowed 150 million IDR[1] from a loan shark.  She had no knowledge about the loan.  When she returned to Indonesia from Taiwan in 2010, she found out that she was the guarantor of the loan.  Since then, she was often assaulted by her husband.  She did not report to the police as it was money dispute.  Since December 2010, the loan shark came for her husband who had already deserted home.  They took away some of her properties and her money.  They threatened to kill her and her husband if the loan was not settled in time.  She was not attacked.  She stayed in the training center for 2 months before finally departed for Hong Kong on 22/8/2011.  She planned to earn money to repay the debt.  She was terminated early twice.  On 7/6/2013, she came back to Hong Kong from Macau on another new contract.  However, she was again terminated early on 19/8/2013.  She overstayed in Hong Kong since 3/9/2013.

The claim of the Mother

5.  The Director dismissed the Mother’s claim on 1/2/2018.  Her appeal was dismissed by the TCAB on 2/11/2018. 

6.  The adjudicator rejected the evidence of the Mother.  Her fear was based on her speculation.  It was unreasonable that she was unable to recall any detail about the loan.  She had not signed any document but was asked to stand as a guarantor.  It was her guess that the loan shark was connected with the police.  In fact, the loan shark had never assaulted her.  Her husband had no intention to harm her.  He deserted her since December 2010.  The early termination of three contracts was inconsistent with her determination to repay the loan. 

The claim of the daughter

7.  The daughter’s father was a local Chinese who had deserted her.  She relied on the factual basis of the Mother for her claim. 

8.  The Director dismissed the daughter’s claim on 28/3/2019.  The appeal was dismissed by the TCAB on 4/3/2020. 

9.  There was no evidence that any family member of the Mother would harm the daughter.  The Mother could not explain why the villagers would harm the daughter. For the same reasons, the adjudicator rejected the fear towards the loan shark.

10.  The Mother filed the leave application on 13/12/2018 (HCAL 2585/2018). The Mother filed the leave application on behalf of the daughter on 29/4/2020 (HCAL 792/2020).  Both applications were heard together.

11.  In the hearing on 29/6/2021, the Mother had no further update.  She had lost contact with the father of the daughter.  She understood that the daughter could obtain Indonesian nationality relying on her status.

12.  In relation to the leave application of the Mother (HCAL 2858/2018), I agree with the adjudicator.  Her evidence was vague and lacked details.  It was not credible.  There was no error of law and procedure.  The decision was reasonable.  I refused leave for judicial review.

13.  In relation to the leave application of the daughter (HCAL 792/2020), the adjudicator had considered the claim separately.  She rejected the risk that the family and villagers might reject the daughter.  She pointed out that there were NGO which could offer assistance.  There was no error of law and procedure.  The decision of the TCAB was reasonable. 

14.  The nationality issue of the daughter was not discussed in the decision of the TCAB.  The Mother did not raise it during the appeal or before the Director.  This issue was specifically put to the Mother during the hearing before this court.  The Mother confirmed that the daughter could obtain Indonesian nationality.  In my view, there was no issue specific to the daughter which had not been advanced or considered by the TCAB because of lack of legal representation.  I treated the absence of legal representation for the daughter as a mere irregularity.  Legal representation would not serve any useful purpose as the intended judicial review was without merits.[2]  I refused leave for both applicants on 17/8/2021.

15.  The Mother filed a summons on 10/1/2022 for extension of time to appeal against the decision of this court.  She was nearly 19 weeks out of time. In her affirmation, the Mother asserted that she did not receive the decision of this court. 

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.[3]

17.  The applicant is out of time for nearly 19 weeks.  The decision was sent to her last known address.  There was no return of mail.  In addition, I have considered the merits of the intended judicial reviews [4].

18.  As set out in paragraphs 6 & 9 above, I agree with the TCAB decisions. The Mother’s evidence was not credible.  Her fear was not substantiated.  She failed to establish that there was real risk of harm for herself and the daughter.  There was no separate issue specific to the daughter.  The intended judicial reviews were of no merit. 

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