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