RE FITRIANI

HCAL 2993/2018

[2022] HKCFI 387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2993 OF 2018

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D E C I S I O N

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1.  The applicant is an Indonesian.[1] She came to Hong Kong as a domestic helper on 4/1/2011. Her contracts were terminated early in 2012 and 2014. She overstayed until 21/4/2016 when she was arrested. She raised the non-refoulement claim of this case on 28/4/2016 and 3/5/2016.

2.  The applicant feared that she might be harmed or killed by a loan shark and her husband if she returned to Indonesia.

3.  About 2010, her husband borrowed IDR[2] 30 million from a loan shark. She did not know the detail about the loan. Subsequently, the loan shark harassed them for repayment. She refused to repay for her husband. The loan shark threatened to confiscate her house and kill her. Her husband assaulted her causing injuries to her. She decided to work in Hong Kong. Her contracts were terminated early in 2012 and 2014. She overstayed as she was afraid to return to Indonesia.

4.  The Director dismissed her claim on 6/4/2018. Her appeal was dismissed by the TCAB on 29/11/2018.

5.  The adjudicator found that the applicant was not credible and rejected her evidence. She was inconsistent about how she learnt about the loan. She did not mention to the adjudicator that her husband threatened to burn her alive. She did not mention that the loan shark would confiscate her house. These were inconsistent with the NCF. She had delayed for 5 years before filing a claim. This undermined her credibility.

6.  On 28/12/2018, the applicant applied for leave for judicial review of the TCAB decision. In her affirmation, she did not specify any error in the TCAB decision.

7.  In the hearing on 19/7/2021, the applicant had no further update or complaint. This court rejected her complaint in the written submission that she could not understand the Director’s decision as this must have been explained to her by the DLS. She was not entitled to legal assistance at all stages of the application. She was able to answer the questions from the adjudicator. There was no unfairness. This court refused leave for judicial review on 28/9/2021.

8.  The applicant filed a summons on 19/10/2021 for extension of time to appeal against the decision of this court. She was about one week out of time. In her affirmation, the applicant asserted that she was not aware of the deadline because of language handicap.

9.  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]

10.  The applicant is out of time for about one week. She had filed an appeal in time to the TCAB before. She must be alerted about time-limits in court procedures. In addition, the important issue at this stage is the merits of the intended judicial review [4].

11.  As set out in paragraph 5 above, I agree with the TCAB decisions. The applicant’s evidence was not credible. Her delay in filing the claim was detrimental to her credibility. She failed to establish that there was real risk of harm. The intended judicial review was of no merit.

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