RE DARSINI

HCAL 2929/2018

[2021] HKCFI 2452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2929 OF 2018

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D E C I S I O N

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1.  The applicant is from Indonesia.[1] She came to Hong Kong on 27/7/2016 as a domestic helper for 2 years. She terminated her contract after a week and stayed with her boyfriend. She surrendered to the Immigration Department on 28/2/2017. She filed the non-refoulement claim in this case on 3/8/2017.

2.  She feared that her father would harm or kill her if she returned to Indonesia.  She failed to give him money.

3.  Before coming to Hong Kong in 2016, the applicant was a domestic helper in Singapore from 2013 to 2015.  In 2013, her father borrowed 15 million rupiahs from a bank.  The family house was used as a collateral.  In October 2015, when she returned to Indonesia , her father kept on asking her for money to repay his debts.  Her father assaulted her at times.  She dared not report to the police.  She did not want to further provoke her father. The family house was eventually forfeited according to her uncle.  She left Indonesia in July 2016 for Hong Kong.

4.  The Director concluded that the risk of harm was low and rejected her claim on 15/3/2018.  She was not harmed seriously despite repeated assaults.  She did not leave Indonesia despite her father assaulted her around October 2015.  It was a domestic dispute.  She had lost contact with her family since mid-2016.  Her father was a coolie.  The Director did not accept that he could locate her everywhere in Indonesia.  The Director accepted that there was reasonable State protection and relocation options.

5.  The TCAB rejected her appeal on 7/12/2018.  The adjudicator pointed out that the applicant did not file her claim shortly after arrival at Hong Kong.  She finally did so about a year later.  She even admitted that she filed the claim as she broke up with her boyfriend.  There was no explanation that her father did not ask other siblings for money.  The adjudicator opined that she was evasive.  Her evidence lacked particulars.  It was bare assertion.

6.  On 20/12/2018, the applicant applied for leave for judicial review of the TCAB decision.

7.  On 12/11/2020, this court refused leave.  This court found no error of law or procedure in the TCAB decision.  It was rational.  There was no reasonable prospect of success in the intended judicial review.

8.  The applicant filed a summons on 2/12/2020 for extension of time to appeal.  She was about 1 week out of time.

9.  In her affirmation, the applicant asserted that she did not receive the court decision in time.  There was no further detail or explanation.

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.[2]

11.  Although the delay was not substantial, she did not give any particular about the date of receipt of the decision and the possible reasons for the alleged delay in the mail.  According to our record, the decision was sent to the last known address of the applicant on 12/11/2020.  There was no return of mail.  This address was the same as recorded in the Form 86 dated 20/12/2018 and the summons dated 2/12/2020.

12.  I am doubtful about her late receipt of the decision.  However, the important issue is the merits of the intended judicial review [3] at this stage.

13.  I agree with the decision of the adjudicator.  The applicant was not a truthful witness.  Her credibility was rightly discounted for the delay in filing her non-refoulement claim.  The asserted future risk was pure speculation.  The intended judicial review was of no merit.

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