RE CICIK WAHYU

HCAL 1598/2019

[2022] HKCFI 34

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1598 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 came to Hong Kong as a domestic helper on 31/7/2013. Her contract was terminated on 11/3/2015. She overstayed until 18/5/2015 when she was arrested. She raised the non-refoulement claim of this case on 26/5/2015.

2.  The applicant feared that she might be harmed or killed by a loan shark and/or her husband if she returned to Indonesia. She was not able to repay her husband’s debts.

3.  Her husband was jobless and a heavy gambler. She had to work hard to repay her husband’s debts ranging from 400,000-600,000 rupiahs each time. Her husband assaulted her if she did not give him sufficient money. She sustained bruises but could not afford treatment. At times, she deserted home and stayed with her father. However, her husband forced her to return and assaulted her severely. He threatened to kill her. Since 2010, a loan shark came to her home to pursue some debts every few days. Her husband managed to escape. The loan shark threatened to kill her family. They broke her properties. She was in such fear that she came to Hong Kong in July 2012. She sent her salary back to her husband for repayment each month.

4.  The Director dismissed her claim on BOR 3, persecution and torture risk on 27/10/2015. The Director subsequently rejected her claim on BOR 2 on 18/8/2017.

5.  Her appeal was dismissed by the TCAB on 21/3/2017 (1^st TCAB decision) and also on 6/6/2019 (2^nd TCAB decision) on the ground of late filing.

6.  For the 1^st TCAB decision, the adjudicator found that the applicant was out of time for over 5 months. She only filed the notice of appeal to the TCAB on 27/4/2016. There was no explanation for the delay. The adjudicator was satisfied that it was not unjust to refuse late filling.

7.  For the 2^nd TCAB decision, the applicant was again out of time for about a month. She should have filed a notice of appeal on 4/10/2017. The adjudicator did not accept the applicant’s assertion that she had not received the Director’s decision on BOR 2 claim dated 18/8/2017. The adjudicator was of the view that the applicant had not been prosecuting her case with due enthusiasm.

8.  The adjudicator found that the loan dispute was a personal matter. The loan shark did not regard the applicant responsible for the repayment of the loan. There was no State involvement. The applicant had never reported to the police. There was reasonable State protection and relocation alternatives. The merits of her case was far from compelling.

9.  On 12/6/2019, the applicant applied for leave for judicial review of the 2^nd TCAB decision. In her affirmation, she only mentioned that her husband was a heavy gambler.

10.  This court opined that all bases of the claim were finally rejected only after the Director’s decision on BOR 2 dated 18/8/2017. This court regarded that the applicant wished to seek leave in relation to 1^st and 2^nd TCAB decisions in her leave application.

11.  In the hearing on 26/1/2021, the applicant indicated that she did not want to return to Indonesia. She feared that her husband and the loan shark could still locate her. The applicant had no further update of the background information.

12.  In the 1^st TCAB decision, the adjudicator had not considered the merits of the intended appeal. He refused late filing as the applicant did not give reasons for the delay. This is an irregularity which may warrant granting of leave in view of the decision of the Court of Appeal [2].

13.  In the 2^nd TCAB decision, the adjudicator had considered the merits of the intended appeal. He held that the applicant’s case was far from compelling. He also rejected the applicant’s assertion that she had not received the Director’s decision in detail. I agree with his reasoning. It is correct for the adjudicator to refuse late filing given the circumstances.

14.  The background facts were identical when the adjudicator considered the 1^st and 2^nd TCAB decisions. The adjudicator had not considered the merits of the applicant’s intended appeal in the 1^st decision. Had he done so, it was inevitable that he would have arrived at the same conclusion—that there was no merit in the intended appeal. Given the circumstances, despite the irregularity in the 1^st decision, I refuse leave for judicial review for both decisions on 19/4/2021.

15.  The applicant filed a summons on 21/7/2021 for extension of time to appeal against the decision of this court. She was over 2½ months out of time. In her affirmation, the applicant asserted that she did not receive the decision from 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 over 2½ months. It is substantial delay. The decision of this court was sent to her current address as in the summons for extension of time. There was no detail as to the circumstances. A mere assertion could not explain the delay of over 2½ months. Despite of this, the important issue at this stage is the merits of the intended judicial review [4].

18.  As set out in paragraphs 6-8 above, I agree with the TCAB decisions. The applicant’s evidence was not convincing. She failed to establish that there was real risk of harm. The intended judicial review was of no merit.

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