Re Lama Mina

HCAL 568/2019

[2022] HKCFI 216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 568 OF 2019

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Hearing:  13 December 2021

Date of Decision:  25 January 2022

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D E C I S I O N

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1.The applicant is from India. She came to Hong Kong on 25/9/2015 as a domestic helper. Her contract was terminated on 31/3/2016. She surrendered to the Immigration Department on 22/4/2016 for overstaying. She lodged the non-refoulement claim in this case on 7/4/2016.

2.In late 2012, she was raped by a local bully “G”. Later, she was forced to marry him. “G” threatened to kill her family if she refused. About 2013, she escaped from G’s home to Silliguri. She stayed with a friend safely for about a year. In mid-2014, her employment contract was terminated in Hong Kong. She dared not return to India. Her parents had to relocate to Nepal to avoid “G”. She was afraid that “G” would harm her if refouled.

3.The Director rejected her non-refoulement claim on 16/4/2018. Her appeal to the TCAB was dismissed on 14/2/2019.

4.The adjudicator pointed out that the applicant was not credible. She gave a different version of facts in the written representation dated 7/4/2017 as the following. She was drugged by “G” before the rape. She could not repay the money borrowed from a loan shark and was forced into prostitution. She ran away from home immediately after the rape. She had never lived with “G”. She could not explain all these inconsistencies.

5.On 27/2/2019, the applicant applied for leave for judicial review of the decision of the TCAB. She was absent from the hearing fixed on 23/8/2021. The notice was sent to her last known address. Her application was dealt with on paper.

6.This court pointed out that she was not entitled to legal representation at all stages of the proceedings. She was allowed ample time to explain the inconsistencies with the TCAB. She should seek language assistance on her own. In fact, her 10-page-affidavit was in English which showed that she could find language assistance. The adjudicator was justified to reject her evidence given the inconsistencies. I agree with the findings of the adjudicator. There was no error of law or procedure. The decision of the TCAB was reasonable. Leave was refused on 29/9/2021.

7.The applicant filed a summons on 10/11/2021 for extension of time to appeal against the decision of this court. She was out of time for nearly 1 month. A hearing was held on 13/12/2021. The applicant had nothing to add. She had no complaint.

8.In her affirmation for extension of time, the applicant indicated that she did not receive the decision of this court and the notice of hearing. She thought it was probably due to the pandemic however she received other mail. She was informed by the Immigration Officer about the result last week[1]. She needed assistance from a friend to understand the decision and file the summons. She was unrepresented. She was not aware of the deadline.

9.According to the court record, the decision was sent to the address in the Form 86 dated 27/2/2019. It transpired that she had moved to a new address according to the record of the Immigration Department dated 3/12/2021. She had not updated this address with this court. She must bear the consequences of any failure in the mail.

10.As explained before, she should find language assistance herself. This court has no duty to provide translation of the decision. In any event, her affirmation for extension of time is a 6-page-typewritten document in English. This demonstrated she was able to find assistance.

11.In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[2]

12.The delay is nearly a month. It is unclear the exact time she was informed about the decision. She had not explained the situation clearly. It is too coincidental that she just could not receive the correspondences from the court. I have grave doubt about her explanation for the delay.

13.As set out above, I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review. Having considered all factors, I refuse the application for extension of time to appeal.

The applicant was unrepresented.