Sari Eri Aellia v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 296/2017

[2019] HKCFI 1081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 296 OF 2017

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Before: Deputy High Court Judge Woodcock in Chambers

Date of Hearing: 13 February 2019

Date of Decision: 20^th May 2019

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D E C I S I O N

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1.This is an application for extension of time to appeal against my decision of 25 August 2017 refusing the application of leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal. She failed to do so. She now requires and seeks leave to extend time to appeal against that order. There has been a 15‑month delay. This application is dated 2 January 2019 and is supported by a short affirmation.

2.The Applicant filed a Form 86, a notice of application for leave to apply for judicial review on 15 June 2017.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the TCAB”) dated 6 June 2017.  The TCAB adjudicator rejected the applicant’s non‑refoulement protection claim.  He found the applicant did not face a real risk of torture if she returned to Indonesia nor did she face a BOR 3 risk, persecution risk or a torture risk.  He found that there was no evidence from the applicant to which he was willing to attach any credence at all.  In other words, he did not find her credible.  He gave full reasons in his decision why he did so conclude.

3.The applicant has been in Hong Kong since September 2010 when she arrived as a foreign domestic helper.  Her contract was prematurely terminated on 27 October 2012.  She remained in Hong Kong illegally until she surrendered to the Immigration Department on 4 June 2015.  She gave birth to a child on 28 July 2015 and both lodged non‑refoulement claims on 7 December 2015.

4.I have set out the background to the applicant’s claim in my decision to refuse leave.  My order was dated 25 August 2017 and the applicant’s explanation in her affirmation is that she did not ever receive my order.  Therefore, she was unable to comply with the 14‑day time limit to file a notice of appeal.  In her affirmation she submits that I did not take into account the danger or dangerous situation she would face (if refouled).

5.In the oral hearing the applicant explained that she never received my order in the post.  It would appear that during her oral hearing to apply for leave to apply for judicial review on 11 August 2017, the applicant informed the court that she had moved home and supplied a new address on that same day.  My order dated 25 August 2017 was sent to her address as supplied on the date of the hearing but it was returned by the post office because it was an “incomplete address”.  It does appear that she may not have received my order but the court is unable to do more than rely on an address supplied by an applicant in person.

6.In any event, I have considered whether there is any merit or any real prospect of success in the intended appeal.  It is not this court’s duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made an error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness.  The applicant’s only ground was that I did not consider her dangerous situation.  Therefore, there is no merit nor any real prospect of success if there was an appeal heard.

7.The applicant had nothing further to add in the oral hearing except to say, she had an autistic child born in Hong Kong who was receiving treatment in Hong Kong.  She requested a chance to educate him here because she wanted the best for her child.

8.Having considered the lack of merit in this application, it would not be in the interests of justice to grant an extension of time.  The applicant’s summons dated 2 January 2019 is dismissed.

The applicant appeared in person.