Re Hety Kusendang

HCAL 200/2018

[2020] HKCFI 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 200 OF 2018

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D E C I S I O N

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1.On 16 October 2019 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her non-refoulement claim upon finding none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or their decision, and that there was no reasonable prospect of success in her intended application.

2.The Applicant now by a summons issued on 7 November 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court, Cap. 4A ended on 30 October 2019, and hence she was late by 8 days with her intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of 8 days may not be considered as significant, for which she explained at the hearing that she never received the decision in the mail and was only told about it when she reported to the Immigration Department on 29 October 2019, and so by the time she could find someone to help her to prepare the necessary documents, the 14-day period for her to file her appeal already expired.

5.The court record however shows that the decision was sent to the Applicant on the same day when it was handed down to her reported address, and that it has never been returned through undelivered post, and hence in the absence of any further evidence from the Applicant in support of her claim, I am not satisfied that she did not receive the decision in the mail as claimed, but I accept that being an unrepresented litigant who may not be able to read or write in English or Chinese, a delay of 8 days on her part in the circumstances cannot be regarded as significant, and I propose to focus on the prospect of success of her intended appeal.      

6.The Applicant did not provide any draft or proposed ground of appeal in her summons, but in her supporting affirmation she stated as follows:

“I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I humbly request the Court to allow me to appeal out of time and give me a chance to explain.”

7.The Applicant, a foreign domestic helper from Indonesia who overstayed in Hong Kong after the termination of her employment contract and only raised her non-refoulement claim after she was arrested for undertaking unauthorized employment, and on her own case that her claim was based on alleged threats from her creditor for failing to repay her loan which was found by the Director and the Board to be a private personal monetary dispute without any official involvement that state/police protection would be available to her, while her other claim of being harassed by Muslims in her home village due to her Christian religion was not supported by independent evidence, and that in any event both risks of threats were found by the Director and the Board to be localized in her home district and that it would not be unsafe or unreasonable for her to relocate to other part of Indonesia that her claim for non-refoulement protection was rejected on all the applicable grounds.  It was therefore against these findings of both the Director and the Board that I refused to grant leave to the Applicant to apply for judicial review for the reasons stated in paragraph 1 above.    

8.Furthermore, since the Applicant never requested for any oral hearing for her leave application when she filed her Form 86, and given the nature of her claim, I do not find any basis or merit in her complaint of not being given any opportunity to clarify her case or the situation in her country.  In fact, even at the hearing of her summons now before me, she did not put forward any such further clarification despite being invited to do so, and that instead she conceded that she has not found any error in the decision and that she just wanted to be allowed to remain in Hong Kong. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in her intended appeal.

9.In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse her application for extension of time to appeal, and dismiss her summons.

The Applicant appeared in person