RE NUR INAYAH

HCAL 491/2019

[2021] HKCFI 3623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 491 OF 2019

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D E C I S I O N

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1.  The applicant is an Indonesian.[1] She worked as a domestic helper in Hong Kong from 2010 to 2015. Her last contract commenced on 4/10/2017. She was arrested for taking up unapproved employment and was sentenced to imprisonment for 4 months. She filed the non-refoulement claim in this case in July 2018. She was in fear that she might be harmed or killed by a loan shark. She was also in fear that her parents might force her to marry the loan shark.

2.  In late 2017, while she was in Hong Kong, her parents informed her on the phone that they had borrowed a loan of 180 million Rupiah [2] from a loan shark.  They had agreed that the applicant would marry the loan shark as an alternative for settling the loan when she returned to Indonesia.  The applicant called the loan shark who refused to extend the deadline. The loan shark threatened to kill her. She stopped any contact with her parents and the loan shark since the end of 2017.

3.  The Director rejected her claim on 3/10/2018. The TCAB rejected her appeal on 9/1/2019.

4.  The adjudicator found that the applicant was not truthful.  She lived with her parents at the time when the alleged loan was raised. She knew nothing about her parents’ intention to buy a plot of land with the loan. It was a huge loan. It was implausible that her parents had not discussed with her. There was no detail about the terms of the loan. It was unreasonable that the loan shark had not asked for any security. When she came to Hong Kong in October 2017, she did not work for the contractual employer but stayed with a friend. She admitted that she came to Hong Kong as she was tired of farming. She was convicted of making false representation to Immigration Officers.

5.  On 20/2/2019, the applicant applied for leave for judicial review of the TCAB decision. A hearing was fixed on 26/1/2021. She was absent. The notice of hearing was sent by ordinary mail and registered mail. There was no return of mail. She did not claim the registered mail. This court dealt with her leave application on papers.

6.  The applicant alleged that she was not given an oral hearing in the grounds for judicial review attached to the Form 86. It was obviously untrue. There was an oral hearing before the TCAB on 17/12/2018. The NCF and the record of interview before the Director was compiled with the assistance of an interpreter. The Decision of the Director must have been translated to her by the DLS. In fact, the applicant confirmed the truth of all evidence in the appeal bundle. This court rejected any prejudice due to language problem. The COI were authentic and the news reports were from established news agencies.

7.  This court ruled that there was no error of law and procedure.  The decision of the TCAB was reasonable. This court refused leave on 19/4/2021.

8.  The applicant filed a summons on 7/5/2021 for extension of time to appeal against the decision of this court.  She was about 4 days out of time.

9.  In her affirmation, the applicant asserted that she did not receive any decision from this court.

10.  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]

11.  The applicant is out of time for about 4 days.  It is not significant delay.  The decision of this court was sent to the address at Leighton Road which was updated on 14/9/2020 by the applicant. There was no return of mail. This address is different from the address in her summons dated 7/5/2021.  The applicant has not updated her new address with this court.

12.  It is the duty of the applicant to update her address with this court. The consequence of any delay would fall on the applicant.[4]

13.  I do not accept her explanation for the delay.  However, the important issue at this stage is the merits of the intended judicial review [5].

14.  As set out in paragraphs 4—7 above, I agree with the TCAB decision.  The applicant failed to establish that there was real risk of harm.  The adjudicator was justified in rejecting the factual basis of her claim.  The intended judicial review was of no merit.

15.  In the circumstances, I refuse the application for extension of time to appeal.