Re Tizon Evelyn Santos

HCAL 3015/2018

[2022] HKCFI 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3015 OF 2018

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D E C I S I O N

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1.The applicant is from the Philippines.[1] She came to Hong Kong as a domestic helper until 12/11/2016. She surrendered to the Immigration Department on 14/11/2016 for overstaying. She filed the non-refoulement claim in this case on 10/3/2017.

2.From 2004 onwards, her relationship with her husband deteriorated because of his drinking and drug problems. He even forced her to work as a prostitute. In 2009, she borrowed a loan of 200,000 pesos for arranging employment in Hong Kong. She sent money back to her husband for repayment but he used up the money. When she returned to the Philippines in 2013, she was detained and harassed by the lender. The lender eventually released her to work in Hong Kong again. In 2015, she borrowed 80,000 pesos from the same lender again to arrange employment in Hong Kong. She could not repay. The lender assaulted her mother and sister. The lender framed her up for drug trafficking offence. She feared that her husband and the lender would kill or harm her and her family if she returned to the Philippines.

3.Her claim was rejected by the Director on 22/2/2018. Her appeal was dismissed by the TCAB on 27/12/2018.

4.The adjudicator found that her evidence was fragmentary and inconsistent. There was no real risk of serious harm. The applicant did not mention various sexual assaults to the adjudicator. She did not mention that her husband forced her to work as a prostitute. The further loan from the same lender was implausible given her traumatic experience before. She exaggerated the ill-treatment by the lender. The police had never approached her about the drug trafficking case. The asserted frame up was implausible.

5.On 31/12/2018, the applicant applied for leave for judicial review. In her affidavit, she did not specify any error in the TCAB decision.

6.The adjudicator had analyzed her evidence carefully. She was not credible. 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 26/8/2021.

7.The applicant filed a summons on 21/10/2021 for extension of time to appeal against the decision of this court. She was about 6 weeks out of time. In her affidavit, the applicant asserted that she did not receive the decision from this court.

8.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.[2]

9.The applicant is out of time for about 6 weeks. It is substantial delay. The decision of this court was sent to her last known address which she updated on 7/3/2020. There was no return of mail.

10.The last known address is different from her address in the summons for extension of time. Had this been the reason for failure in the mail, she must bear the consequence as she did not update her address. The applicant has not given any detail whatsoever about the circumstances of the above.

11.I doubted her explanation for the delay. However, the important issue at this stage is the merits of the intended judicial review [3].

12.As set out in paragraphs 4—6 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.

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

The applicant was unrepresented.