The SUN HK : OS since 2004 continues fight to remain in HK

Arista has been in and out of Eastern Court since she filed a non-refoulement claim

After wading through Hong Kong’s complicated legal system since she came here as a tourist in 2004 and overstayed her visa, 62-year-old Emelita Artista is still bent on being allowed to remain in Hong Kong.

Arista again appeared in Eastern Court on Dec 21, and told magistrate Ivy Chui that her appeal against a decision by the High Court denying her request for more time to challenge the decision of the Torture Claims Appeal Board denying her right to remain in Hong Kong.

As a result, she was allowed to remain until Mar 3, 2024 so she could pursue her claim. Her bail of $1,000 was renewed until then.

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Arista was found to have overstayed her visa for 13 years when she arrested for shoplifting lotion and canned meat in a Wellcome store in Quarry Bay in January 2017.

Then Eastern principal magistrate Bina Chainrai sentenced her to four months imprisonment, but was incensed that Arista could not be jailed immediately because she filed a claim for non-refoulement, or an opposition to being sent home, allegedly because of a threat on her life by a nephew.

Chainrai urged the prosecution to revisit her case, saying her act of filing for non-refoulement after being found to have overstayed her visa and pleading guilty to theft, was an abuse of the process.

PINDUTIN
PARA SA DETALYE

Despite this, Arista managed to remain in Hong Kong since. After her claim was rejected by both the Immigration Director and the TCAB, she went to the High Court to apply for leave for a judicial review.

However, in a judgment handed down on Jan. 19 this year, Judge Bruno Chan denied her application, saying she was already five months late in filing the application for leave to appeal the decision.

The delay, said the Judge, must be considered “very substantial and inordinate,” apart from the fact that Arista did not provide an explanation as to why she failed to appeal against the TCAB’s decision on time.

DETALYE

Further, Arista failed to cite any proper ground for her application.

Despite the definitive ruling, Arista has persisted in exploring all avenues that would allow her to remain in Hong Kong.

Arista, who was born in Manila and raised in Ilocos Sur, worked in Hong Kong as a foreign domestic helper from 1999 to 2003.

PINDUTIN PARA SA DETALYE

During this time, she heard of a land dispute between her father and a cousin, Ruel. She said she decided to confront Ruel about this during a vacation in the Philippines in the 2003, as a result of which he made threats against her.

After her father passed away in 2003, Ruel allegedly threatened to kill her if she did not surrender her part in the disputed land to him, and so she fled to Hong Kong on a tourist visa the following year, and overstayed.

She filed a claim for non-refoulement on July 13, 2017 after being charged with theft and breaching her condition of stay.

Pindutin para sa detalye

On Aug 9, 2017 the Director of Immigration rejected her claim, saying the level of risk of harm from Ruel was low, and that there was no reliable evidence of any real intention on his part to seriously harm or kill Arista.

In any event, said the Director, the dispute was a private matter among family members and there was no indication that the applicant would not be given state or police protection if she returned to the Philippines.

On Aug 25, 2017 she appealed the Director’s decision to the TCAB. Just over a year later, or on Jul 31, 2018, the Board dismissed the appeal and affirmed the Director’s decision.

Arista did not take any further action until Apr 1, 2019 when she filed her Form 86 for leave to apply for judicial review of the Board’s decision. However, she cited no ground but merely attached a copy of the decision.

By then, she was already “seriously out of time with her application,” said the judge.

According to Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review must be made within three months from the day when grounds for the application first arose, unless the court finds reasonable ground to extend the period.

Despite losing her latest bid, Arista is given a further chance to appeal against this decision.