Case Document

100%Judiciary

HCAL 95/2021

[2022] HKCFI 33

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 95 OF 2021

___________________

Re:

SRI SUYATI

Applicant

___________________

Before:

Deputy High Court Judge P. Li in Chambers

Date of Decision:

11 January 2022

___________________

D E C I S I O N

___________________

1.The applicant is an Indonesian.[1] She came to Hong Kong on 28/2/2014 under a 2-year-contract as a domestic helper. Her contract was terminated early on 15/7/2014. She overstayed until 3/8/2015 when she was arrested [2]. She raised the non-refoulement claim in this case on 12/8/2015. She was again arrested on 26/11/2015 for illegal employment.[3]

2.She feared that she might be harmed or killed by a loan shark. She failed to repay the loan of her ex-husband. Her ex-husband demanded her to repay his loan by marrying him again.

3.She got married in 2000 at the age of 14. Her ex-husband was violent to her. She started working in Hong Kong in 2007. She divorced her ex-husband in 2009.

4.Sometime after the divorce, a loan shark claimed that her ex-husband had borrowed IDR 50 million [4] from him in 2001. Her house was used as collateral. If she failed to repay, her house [5] would be confiscated. She did not sign any loan agreement. In mid-2013, her ex-husband contacted her parents proposing to marry her again so that she could repay his loan. She refused. Her parents did not suffer any physical violence from the loan shark or her ex-husband.

5.Her non-refoulement claim was rejected by the Director on 29/1/2016 and 3/5/2018[6]. Her appeal to the TCAB was rejected on 14/9/2018.

6.The adjudicator dealt with the appeal on paper as the applicant was absent from the oral hearing fixed on 19/7/2018. She gave no explanation. The Adjudicator found that there was no real risk of harm. The applicant had delayed to file her claim until after her arrest in August 2015. In fact, she had been threatened by the loan shark in 2009. The marriage and the divorce were not substantiated by any document. The applicant did not submit any documentary proof of the loan. She did not sign any loan agreement. It was unclear how the applicant could have inherited the house from her grandfather. Her father and elder sister should have a share according to the civil code of inheritance in Indonesia. The loan shark had never attacked her even when she returned to Indonesia in 2010 for 7 weeks. The applicant had been living apart from her ex-husband while working overseas.

7.On 27/1/2021, the applicant applied for leave for judicial review of the TCAB decision. She was out of time for over 25 months. She did not apply for an extension of time to file the leave application. She did not explain the delay either. In the affidavit in support of the application, she did not specify any error in the decision of the TCAB.

8.This court had to consider the length of the delay, the reason for the delay and the merits of the intended leave application. [7]

9.The applicant did not explain her absence from the TCAB hearing despite prompt notice. It was correct for the adjudicator to deal with the appeal on paper.

10.This court agreed with the decision of the TCAB. The basis of the claim was not credible even on paper. There was no merit in the intended judicial review. This court concluded that there was no error of law and procedure. The decision of the TCAB is reasonable.

11.This court refused to extend time for the leave application and refused leave for the intended judicial review on 27/4/2021.

12.The applicant filed a summons on 7/6/2021 for extension of time to appeal against the decision of this court. She was nearly one month out of time. In her summons, the applicant asserted that she did not receive the decision from this court within reasonable time.

13.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.[8]

14.The applicant is out of time for nearly a month. It is substantial delay. According to the court record, the decision was sent to the same address as in her summons dated 7/6/2021. The applicant did not give detail as to the circumstances of the late receipt. A mere assertion that she did not receive the decision within reasonable time leaves me in grave doubt. In addition, the important issue at this stage is the merits of the intended judicial review [9].

15.As set out in paragraphs 6—11 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.

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