RE SRI INDRAWATI

HCAL 2916/2018

[2021] HKCFI 3756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2916 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 26/11/2012. Her contract was terminated on 6/12/2012. She overstayed until 7/6/2014 when she was arrested[2]. She raised the non-refoulement claim of this case on 18/6/2014.

2.  She feared that she might be harmed or killed by a loan shark and her ex-husband if she returned to Indonesia.  Her ex-husband demanded her to repay his loan.

3.  In early 2010, her ex-husband borrowed 600 million Rupiah from a loan shark to start a garage business.  They signed the loan agreement jointly.  She had little knowledge of the terms.  Around April 2010, the garage business failed.  Her ex-husband could not repay the loan. There were persistent calls from the loan shark threatening them. Her ex-husband was violent to her.  She was under great physical and mental torture.  She then came to Hong Kong as a domestic helper in September 2010.

4.  She returned to Hong Kong in November 2012 under a new employment contract. It was terminated early in December 2012. She overstayed since then. In the meantime, her ex-husband divorced her and re-married in 2014.  He threatened her to remit money to him. He also led the loan shark to seize her father’s house.

5.  Her claim was rejected by the Director on 20/4/2016 and 23/6/2017 [3]. Her appeal was dismissed by the TCAB on 6/11/2018.

6.  The adjudicator found that there was no real risk of harm. The applicant knew very little about the terms of the loan.  She was unable to explain how the loan shark could obtain the title of her father’s house. She had delayed for about 1½ years before filing her claim. She only did so after her arrest. This undermined her credibility. Her ex-husband was unharmed living at his home throughout these years. The applicant was safe at Jakarta and Blitar for about a year. She had not lived with her ex-husband since 2010. The chance of harm from him was very remote.

7.  On 19/12/2018, the applicant applied for leave for judicial review of the TCAB decision. In her affirmation, she did not have any specific complaint about the TCAB decision.

8.  In the TCAB decision, the adjudicator had considered the situation of her Nepalese husband and son from her marriage in Hong Kong. Her husband and her son were not subjects of assessment by the Director.  They were not parties to the leave application.  I do not think the nationality of the husband and the son was relevant.  It should not have any bearing on the non-refoulement claim of the applicant.

9.  The adjudicator had analyzed her evidence carefully. There were important aspects which undermined her credibility. This court agreed with the findings of the adjudicator. This court ruled that there was no error of law and procedure.  The decision of the TCAB was reasonable. This court refused leave on 7/4/2021.

10.  The applicant filed a summons on 9/6/2021 for extension of time to appeal against the decision of this court.  She was about 7 weeks out of time. In her affirmation, the applicant asserted that she did not receive the decision from this court as it was sent to her old address. She had not updated her address with this court.

11.  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.[4]

12.  The applicant is out of time for about 7 weeks.  It is substantial delay. She has a duty to update her address. She must bear the consequence of any failure in the correspondence with this court. Despite of this, the important issue at this stage is the merits of the intended judicial review [5].

13.  As set out in paragraphs 6, 8 & 9 above, I agree with the TCAB decision.  The applicant failed to establish that there was real risk of harm.  The intended judicial review was of no merit.

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