RE WARTINI

HCAL 1703/2018

[2020] HKCFI 1644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1703 OF 2018

__________________

__________________

_______________

D E C I S I O N

_______________

1.  The applicants are mother and son. I shall refer to the first applicant as the applicant and the second applicant as the applicant son.

2.  They took out a summons dated 31 December 2019 for leave to appeal the decision of the Court dated 27 September 2019 (“the Court’s decision”) on the ground that the decision is unreasonable.  In the applicant’s affirmation, she said that their application was late because she did not receive a letter advising her on the time for the appeal.  She appeared in court and said that the person holding the key to the mailbox had gone to China for three months.

3.  The applicant is an Indonesian national.  She was a domestic helper.  She finished her contract but she overstayed and lodged a non-refoulement claim with the Director of Immigration (“the Director”).  She made the application on behalf of herself and her son, who was given birth by the applicant during her stay in Hong Kong.  She claimed that if she returned to Indonesia, she would be harmed or killed by her parents because her son was born out of a wedlock in Hong Kong.

4.  The Director rejected their claim and they appealed to the Torture Claims Appeal Board (“the Board”).  The Board considered their appeal and by its decision dated 19 July 2018 (“the Board’s Decision”), it refused their appeal and confirmed the Director’s Decision.

5.  The applicants then filed Form 86 on 21 August 2018 to the High Court for leave to apply for judicial review against the Board’s Decision. The matter went before Deputy Judge Woodcock.  Since they did not request a hearing, Deputy Judge Woodcock decided to consider their application on the papers.

6.  The Board considered the merits of their case by reference to the Director’s Decision and their evidence.  It came to the conclusion that although it accepted that she had given birth to her son in Hong Kong, which enraged her father, the Court agreed with the Board that the facts would not support her claim as they would not satisfy the requirements under the statutory provisions and the Convention.  On this basis, the Court refused to grant leave to the applicants to apply for judicial review of the Board’s Decision.

In Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019 §19, the Court of Appeal held that in order to determine whether time should be extended for the applicants to appeal the decision of the Court of First Instance refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued.  The applicants have to identify the error the Court of First Instance had committed in coming to its decision [23].

7.  The applicant said that she wanted to stay in Hong Kong so that her son may attend school.  She had no job in Hong Kong.  This is not a valid ground for her application for leave to apply for judicial review of the Board’s Decision.

8.  The applicant is unable to say in what respect the Court’s decision was wrong.

9.  Accordingly, I dismiss their application.