Re Siti Aisyah

HCAL 419/2019

[2022] HKCFI 1571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 419 OF 2019

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Before:  Hon Johnny Chan J in Chambers

Date of Hearing:  25 May 2022

Date of Decision:  18 July 2022

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D E C I S I O N

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1.This is an application for extension of time to appeal against my decision of 27 April 2022 refusing the applicant leave to apply for judicial review. Under Order 53 rule 3(4), the applicant had 14 days to file her appeal. She did not do so within the 14-day appeal period. By a summons dated 13 May 2022, the applicant seeks leave to extend time to appeal against that order. The applicant was 2 days late with her intended appeal.

2.The applicant is a national of Indonesia and she first came to Hong Kong on 28^th April 2006. Subsequently she had entered Hong Kong as a domestic helper multiple times for employment with employment visas. The applicant last entered Hong Kong on 24^th August 2015 and was permitted to stay until 23^rd September 2015 as a visitor. She has not left Hong Kong or applied for any extension of stay since then. She surrendered to the Immigration Department in 6^th October 2015. She was released on recognizance on 6^th October 2015. She subsequently raised her non-refoulement claim by written significations dated 20^th June 2016. An officer acting on behalf of the Director of Immigration rejected the applicant’s claim by a decision dated 29^th March 2018.

3.The applicant appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) against the decision of the Director’s decision. The applicant appeared in person before the Board at the appeal hearing on 12^th December 2018. By a decision dated 11^th January 2019, the Board rejected the applicant’s non-refoulement protection claim. The Board also found the applicant’s claims for protection from refoulement under BOR2 risk and BOR3 risk failed. Full reasons were given by the Board in its decision.

4.On 14^th February 2019, the applicant filed a Form 86, i.e. a notice of application for leave to apply for judicial review. The intended judicial review was against the decision of the Board.

5.I have set out the background of the applicant’s claim in the CALL-1 form. My order was posted to the Applicant on 27^th April 2022. She now claims that she has not received the order and as a result he failed to comply with the 14-day time limit.

6.As said, the applicant was 2 days late with her intended appeal. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to the following factors:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the prospect of the intended appeal; and

(iv)  the prejudice to the respondent if an extension of time were granted.

7.The delay of 2 days is not a substantial delay. In my judgment, it is unlikely that there would be any prejudice to the respondent if an extension of time were granted.

8.The applicant said she did not appeal within the 14-day limit because she did not receive the decision of 27 April 2022 refusing the applicant leave to apply for judicial review. The decision was sent to an address provided by the applicant. The applicant said at the time of the hearing before me on 25 May 2022, she still had not received the decision.

9.The applicant said she received from the court a letter dated 22 February 2022 advising her that the CALL-1 Form would be ready for handing down within the next 2 weeks. She had come to court thrice and each time she came she was told she should go home and wait. She has not received the decision.

10.Given the applicant’s claim that she has not received a copy of this court’s decision, the applicant could not explain why she knew her application for leave to apply for Judicial Review was refused and why she thought she had to apply for an extension of time to appeal against the decision.

11.The applicant confirmed before me the address of Fung Yu Street, To Kwa Wan was correct. The letter dated 22 February 2022 (which the applicant received) and the decision of this court were both sent to that address.

12.In my judgment, the applicant’s claim that she did not appeal within the 14-day period because she never received a copy of this court’s decision does not have a ring of truth.

13.There is no merit nor any real prospect of success in the intended appeal.

14.That said, although there is no real prospect of success in this intended appeal, all matters taken into account, and having considered (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted, I find that it would be in the interests of justice to grant an extension of time.

15.For the reasons given, the application for an extension of time to appeal is approved, the applicant is given an extension of 14 days to apply to the Court of Appeal to appeal against my decision of 27 April 2022.

The applicant appeared in person