Re Wiji Utami

HCAL 1842/2018

[2021] HKCFI 641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1842 OF 2018

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D E C I S I O N

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1.The applicant filed a summons on 21 December 2020 for extension of time to appeal against the Court’s decision.

2.The applicant is an Indonesian national. She arrived in Hong Kong on 19 August 2010 as a domestic helper. Her employment contract was terminated prematurely. She overstayed. On 14 November 2011, she gave birth to her son and on the same day she was arrested by the police for overstaying. She had obtained declaration of paternity against Hong Kong permanent resident status for her son from the Family Court. She lodged a non-refoulement claim with the Director of Immigration (“the Director”) by written signification respectively dated 26 January 2015 and 2 February 2015.

3.By Notice of Decision dated 28 March 2018 (“the Director’s Decision”), the Director rejected her claim and she appealed to the Torture Claims Appeal Board (the “Board”). The Board considered her appeal and by its Decision dated 30 August 2018 (“the Board’s Decision”), it refused her appeal and affirmed the Director’s Decision.

4.On 5 September 2018, the applicant applied to the High Court for leave to apply for judicial review of the Board’s Decision.

5.Having considered the merits of the case, by Form Call-1 dated 14 July 2020 (“the Court’s decision”), the Court found that there was no merit in her proposed judicial review and dismissed her application.

6.In her Summons of this application, the applicant said that the Court’s decision was made without her appearance. She wanted to give a more complete picture of her case to court. She wanted legal representation and extension of time for her appeal.

7.She did not say that she did not receive the Court’s form Call-1. Nor did she state the reasons for her delay in the filing of her appeal.

8.The Court’s Form Call-1 was sent to the applicant’s last known address. Pursuant to Order 65, rule 5 (2A) of the Rules of the High Court (“RHC”), it is deemed to have served on her on 16 July 2020, two days after the date of the letter in the ordinary course of the post, as it was not returned unserved.

9.She is out of time for filing her appeal.

10.By virtue of Order 32, rule 11A(1)(a) of the RHC, I decide to deal with this application without an oral hearing.

11.In Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019, the Court of Appeal held that the Court has to consider the prospect of the intended appeal in order to determine whether time should be extended.

12.The Board had given its reasons for its decision. It said that the applicant had given inconsistent evidence to the Director and at the hearing, she finally admitted that her real reason for her application was that she wanted her youngest son to have better education in Hong Kong.

13.There is no evidence to show that the Board erred in its finding of the facts or the application of the law to her case.

14.She was unable to say in what respect the Court’s decision was wrong in her affirmation. Those reasons in paragraph 6 above will not assist her. She was absent on the day of hearing without prior notice. Up till now, she has not explained why she was absent. She is not entitled to free legal representation at every stage of the proceedings as held by the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178.

15.Since there is no reasonable prosper of success in her intended appeal, I decline to extend time for her intended appeal.

16.I dismiss her application.