RE SUANINGSIH

HCAL 2971/2018

[2021] HKCFI 1954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2971 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 1/11/2013 as a domestic helper for 2 years. Her contract was terminated on 1/12/2013. She overstayed until she was arrested by the police on 28/10/2014. She filed the non-refoulement claim in this case on 3/11/2014.

2.  She feared that her father and brother would kill her if she returned to Indonesia.  She had an illegitimate child with a Nepalese while in Hong Kong.  The Director rejected her claim on 29/1/2018.  The TCAB rejected her appeal on 19/11/2018. 

3.  On 24/12/2018, the applicant applied for leave for judicial review of the TCAB decision.

4.  On 16/6/2020, Deputy Judge Lung refused leave for judicial review.  The Judge pointed out that it was for the TCAB and the Director to assess the risk of harm.  The Judge found no error of law or procedure.  The decisions were rational.  There was no reasonable prospect of success in the intended judicial review.

5.  The applicant filed a summons on 2/11/2020 for extension of time to appeal against the decision of Deputy Judge Lung.  She was about 17 weeks out of time.

6.  In her affirmation, the applicant asserted that she did not receive the court decision.  A friend, who checked the court judgments online, told her about the decision.  She sought translation of the decision as none was provided by the court.  She was not aware of the 14-day-time-limit for appeal.  She complained that there was no oral hearing in relation to the leave application.

7.  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]

8.  The applicant is out of time for about 17 weeks.  It is substantial delay.  She alleged that she had not received the court decision.  According to the court record, the decision was sent to the last known address of the applicant at Reclamation Street.  There was no return of mail.  This address was the same as recorded in her Form 8 dated 15/5/2016 and in the Form 86 dated 24/12/2018.  There was no change of address from 15/5/2016 to 16/6/2020.

9.  Being a responsible applicant, she should have checked the outcome of her application through available channels or made enquiries with the court.  Although the time limit for appeal was not specified in the court decision, it was stipulated in the law.  It was no excuse.  In any event, her experience in processing the appeal to TCAB must have raised her awareness of a time limit.  However, she made no effort to find out.

10.  She had not specified when her friend found out the court decision online.  The delay of 17 weeks appeared unreasonably long even allowing time for translation.  There was no duty for this court to provide a translated decision for the applicant.  She should make her own arrangement.  The affirmation was typewritten in English.  This showed that she had the resources of finding assistance.

11.  I do not accept her explanation for the delay.  However, the important issue at this stage is the merits of the intended judicial review [3].

12.  The applicant claimed that her family would not accept her son.  Her father and brother threatened to kill her and her son if she returned to Indonesia.  They made threatening calls to her.  They were very angry with her.

13.  The adjudicator found that the applicant did not want to return to Indonesia because of her son who was a Hong Kong resident.  She wanted to take care of him as her husband needed to work.  She confirmed that if she went back to Indonesia alone, there would not be any harm from her father and brother.  The adjudicator noted that the right to family life was excluded by s.11 of the Hong Kong Bill of Rights Ordinance.  The adjudicator found that there was no real risk of harm.  The adjudicator rejected her appeal on all grounds.

14.  The applicant complained that there was no oral hearing for the leave application.  In fact, she had not requested for an oral hearing.  A court may deal with a leave application on paper.  There is no substance in this complaint.

15.  I agree with the judgment of Deputy Judge Lung.  I also agree with the decision of the adjudicator.  The applicant failed to establish that there was real risk of harm.  The intended judicial review was of no merit.

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