RE SITI NAISAH AND ANOTHER

HCAL 2823/2018

[2020] HKCFI 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2823 OF 2018

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D E C I S I O N

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1.  The 1^st 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 daughter, the second applicant, who was given birth by the applicant during her stay in Hong Kong.

2.  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 22 December 2017 (“the Board’s Decision”), it refused their appeal and confirmed the Director’s Decisions.

3.  The applicants then applied to the High Court for leave to apply for judicial review of the Board’s Decision. However, the application was out of time for about one year. It is quite a substantial delay.  The Court considered the merits of the case in order to determine whether time should be extended for them to proceed with their application. Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018 at §28 and AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

4.  Having considered the merits of the case, by Form Call-1 dated 9 January 2020 (“the Court’s decision”), the Court found that there was no merit in their proposed judicial review. The Court therefore declined to extend time for them to file her application for leave to apply for judicial review of the Board’s Decision. Accordingly, the Court dismissed their application.

5.  The Court further directed that if the applicants intended to appeal the order of refusing to extend time for them to proceed with their application for leave to apply for judicial review of the Board’s Decision, they had to take out an application for leave with reasons in support of it. The Court might decide whether a hearing would be required, if not, their application would be dealt with on paper.

6.  Pursuant to the above directions, the applicants have taken out a summons for leave to appeal to the Court of Appeal. In her affirmation, the first applicant stated:

a.  she was pregnant;

b.  she did not have money for the filing fee;

c.  she did not have legal representation for her BOR 2 risk assessment;

d.  she did not have assistance on the language;

e.  all the above are against high standards of fairness and prejudicial to her.

7.  The first two reasons are not sustainable reasons. The third to the fifth reasons had been considered in the Court’s decision. In any event, these reasons do not affect the Board’s finding that their evidence on the facts of their case was not reliable. They did not have any factual basis in support of their claim.

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

9.  Since the applicants have no reason to appeal, I decide to dispose of their application on paper without a hearing.

10.  I dismiss their application.