Re Chandra Amelia

HCAL 1621/2019

[2021] HKCFI 3759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1621 OF 2019

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Before: Deputy High Court Judge P. Li in Chambers

Date of Decision: 22 December 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 in 2008 as a domestic helper. After her contract expired, she overstayed since 21/2/2012. She was arrested on 15/7/2015. She filed the non-refoulement claim in this case on 10/8/2015. She was in fear that the money lender would harm or kill her if she returned to Indonesia as she failed to repay her parents’ loan.

2.About 2006, her parents borrowed a loan of 40 million rupees [2] to pay the medical fee of her mother. The money lender was a known triad. A high interest rate was charged. Her parents could not repay even the interest.About mid-2007,the money lender and his gang assaulted her and her father with sticks. They damaged her properties before leaving. She promised to repay the loan for her parents.

3.The money lender and his men came again around 2008, she was forced to sign a guarantee undertaking to repay. The men threatened to kill her if she failed to pay. Her contract was terminated early in December 2008. She returned to Hong Kong again on another contract in June 2009.

4.Her claim was rejected by the Director on 27/9/2018. Her appeal was dismissed by the TCAB on 6/6/2019.

5.The adjudicator found that there was no genuine threat from the money lender. The loan was a private matter. There was no public official involved.  She did not file any application until August 2015 after she was arrested for overstaying. Her explanation that she wanted to continue employment was not accepted. She was safe in Indonesia while undergoing training in 2008. She was also safe while waiting for a new contract in 2009. There was reasonable options for relocation.

6.On 14/6/2019, the applicant applied for leave for judicial review of the TCAB decision. In her affirmation, she complained that the adjudicator had not satisfactorily considered the COI.

7.A hearing was fixed on 9/2/2021. She was absent. The notice of hearing was sent by ordinary mail to her last known address as recorded in the Form 86 (14/6/2019) and the summons for extension of time (9/6/2021). There was no return of mail. This court dealt with her leave application on papers.

8.The adjudicator had analyzed her evidence carefully. There were important aspects which undermined her credibility. This court agreed with the findings of the adjudicator. This court ruled that there was no error of law and procedure.  The decision of the TCAB was reasonable. This court refused leave on 20/5/2021.

9.The applicant filed a summons on 9/6/2021 for extension of time to appeal against the decision of this court.  She was about one week out of time. In her affirmation, the applicant asserted that she did not receive the decision from this court on time.

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.[3]

11.The applicant is out of time for about one week.  It is nevertheless a delay.  The decision of this court was sent to her last known address. It is the same the address as in her summons dated 9/6/2021.  There was no return of mail. The applicant has not given any detail as to the assertion that she did not receive the decision on time.

12.I doubted her explanation for the delay.  However, the important issue at this stage is the merits of the intended judicial review [4].

13.As set out in paragraphs 5 above, I agree with the TCAB decision.  The applicant failed to establish that there was real risk of harm.  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.