Case Document

100%Judiciary

HCAL 2477/2018

[2021] HKCFI 3302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2477 OF 2018

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Re:

WIYANTI

Applicant

___________________

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 first worked as a domestic helper in Hong Kong in 2000. Her last contract commenced on 28/7/2014. It was terminated early on 17/10/2014. She overstayed until arrested by the police on 27/6/2015[2]. She filed the non-refoulement claim in this case on 8/7/2015.

2.The applicant was in fear that she might be harmed or killed by a loan shark. Around 1994, her parents borrowed 62 million Indonesian Rupiahs from a loan shark. They could not repay subsequently. The loan shark threatened her and vandalized her home. In 2014 before she was arrested for overstaying, the loan shark phoned her in Hong Kong threatening to kill her if she did not settle the debt.[3]

3.The Director rejected her claim on 19/3/2018. The TCAB rejected her appeal on 19/10/2018.

4.The adjudicator found that the applicant was not truthful. There were material inconsistencies between her oral evidence, the NCF and the record of screening interview.[4] The adjudicator rejected the basis of her claim. He rejected that she and her family were harassed or threatened by a loan shark. There was no real risk of harm if she returned to Indonesia.[5]

5.On 6/11/2018, the applicant applied for leave for judicial review of the TCAB decision

6.Deputy Judge CP Pang refused leave for judicial review. The Judge held that the adjudicator was entitled to find that the applicant was not credible. The Judge pointed out that there was long delay before she filed her claim. The ill-treatment was of low intensity. There was no reason for the creditor to pursue the debt after so many years. The evidence demonstrated only a remote and unreal risk of harm in future. The Judge found that the decision of the TCAB was reasonable. There was no error of law or procedures. There was no reasonable prospect of success in the intended judicial review.

7.The applicant filed a summons on 16/3/2021 for extension of time to appeal against the decision of Deputy Judge Pang. She was about 1 month out of time.

8.In her affirmation, the applicant asserted that she did not receive any letter from the High Court.

9.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]

10.The applicant is out of time for about 1 month. It is quite significant delay. The decision of Deputy Judge Pang was sent to the same address as recorded in the Form 86. She must have changed to the new address according to her summons dated 16/3/2021. The applicant had not updated her address with the court.

11.It is the duty of the applicant to update her address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance. It is her duty to update her address with this court. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the applicant.[7]

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 [8].

13.As set out above, I agree with the TCAB decision. The applicant failed to establish that there was real risk of harm. The adjudicator was justified in rejecting the basis of her claim given the material inconsistencies. I agree with the decision of Deputy Judge Pang. The intended judicial review was of no merit.

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