Re Rustini

HCAL 1298/2018

[2021] HKCFI 3299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1298 OF 2018

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Before: Deputy High Court Judge P. Li in Chambers

Date of Decision: 11 November 2021

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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 on 12/8/2013 as a domestic helper. Her contract was terminated on 8/1/2014.[2] She filed the non-refoulement claim in this case on 26/2/2014.

2.The applicant got married in 2000. She was a victim of persistent domestic violence. She was assaulted by her husband but the injuries were not serious. She could usually recover in about 2 weeks with treatment by herself. She did not report to the police as it was a family matter. In October 2005, she first came to Hong Kong as a domestic helper. She remitted money back to her husband who was in debt. In August 2013, her husband borrowed 25 million IDR[3] from a loan shark again. He threatened to kill her if she did not repay for him. Later that month, she came to Hong Kong for work. She could not repay the debt for her husband. She feared that her husband would kill her if she returned to Indonesia.

3.The Director rejected her claim on 8/5/2015 and 6/4/2017. [4] The TCAB rejected her appeal on 23/2/2017 and 29/6/2018.[5]

4.On 6/7/2018, the applicant applied for leave for judicial review of the TCAB decision dated 29/6/2018 which ruled on BOR 2 only. This court took it that she wanted to appeal both TCAB decisions on all applicable grounds.

5.On 19/4/2021, this court refused leave for judicial review. This court agreed with the findings of the TCAB in both decisions. It was a private loan dispute. The injuries of the applicant did not attain a minimum level of severity. There was no involvement of any public official.

6.This court rejected other grounds of judicial review set out in her written submission dated 30/10/2020. The applicant must have a reasonable understanding of the Director’s 1^st decision (8/5/2015) which was sent to the DLS and translated to her as a matter of practice. The Director’s 2^nd decision (6/4/2017) which ruled on BOR 2 added very little to the 1^st decision. The NCF were compiled with the assistance of the DLS and an interpreter. The screening interview was conducted with the assistance of an interpreter. She actually confirmed with the adjudicator that the content of the NCF and the record of interview was true. The applicant filed a written submission in English. This indicated that she could have language assistance from other sources. There was no unfairness because of language. As to the COI, they were from reliable sources. The applicant should have pointed out the objectionable parts. Further, the applicant was assisted by an interpreter during the TCAB hearing. She admitted that she had answered questions honestly.

7.This court found no error of law or procedure. The decisions were rational. There was no reasonable prospect of success in the intended judicial review.

8.The applicant filed a summons on 1/6/2021 for extension of time to appeal against the decision of this court. She was about 1 month out of time.

9.In her affirmation, the applicant asserted that she did not know English. She was not aware of the time limit for appeal.

10.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.[6]

11.The applicant is out of time for about 1 month. It is quite significant delay. The time limit for appeal is stipulated in the law. It is no excuse. In any event, her experience in processing the appeal to TCAB must have raised her awareness of a time limit. She should have made enquiries about it. The language problem had been dealt with in the leave application.

12.I do not accept her explanation for the delay. However, the important issue at this stage is the merits of the intended judicial review[7].

13.As set out above, I agree with the TCAB decisions. The applicant failed to establish that there was real risk of harm. I also reject the other grounds of judicial review. The intended judicial review was of no merit.

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

The applicant was unrepresented.