RE NAINAKALA BANEM LIMBU

HCAL 942/2018

[2020] HKCFI 1382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 942 OF 2018

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D E C I S I O N

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1.  The applicant is a Nepalese national. She arrived in Hong Kong on 30 May 2007 illegally. She surrendered to the Immigration Department and lodged a non‑refoulement claim with the Director of Immigration (“the Director”) on 16 January 2012.

2.  By two Notices of Decisions respectively dated 18 March 2015 and 2 December 2016, the Director rejected her claim and she appealed to the Torture Claims Appeal Board (“the Board”).  The Board considered her appeal and by its Decision dated 14 May 2018 (“the Board’s Decision”), it refused her appeal and confirmed the Director’s Decisions. 

3.  On 25 May 2018, the applicant applied to the High Court for leave to apply for judicial review of the Board’s Decision.

4.  Having considered the merits of the case, by Form Call‑1 dated 8 March 2019 (“the Court’s decision”), the Court found that there was no merit in her proposed judicial review and dismissed her application. 

5.  The applicant did not appeal within time and he filed a summons on 27 December 2019 for extension of time to appeal against the Court’s decision.

6.  In her affirmation in support of this application, the applicant set out the following grounds in support of her application.

(1)  She was in the prison, so she did not receive the Court’s decision.

(2)  She was advised that she had good grounds of appeal, which were not to be considered by the Court as this stage.

(3)  The Director and the Adjudicator did not see her grounds in support of her application and their decisions are wrong. They had not made proper enquiry into her case.

(4)  The Adjudicator are invited to tour around her country so as to understand her situation.

7.  In Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019, the Court of Appeal held that the Court has to consider the prospect of the intended appeal in order to determine whether time should be extended for her to appeal.

8.  It is wrong to say that the Court is not to consider the merit of her case at this stage.  On the contrary, the Court has to consider the merit of the case in order to decide whether time should be extended for her to file the Notice of Appeal.  Ground (2) fails. 

9.  Ground (3) is her opinion without any evidence in support of it.  It fails too. 

10.  Ground (4) does not assist her.  She has the burden of proof herself.  It is unnecessary for the Director or the Adjudicator to go to her country to appreciate her danger.  She had put forth her case to the Director and the Adjudicator in her statements and she had appeared before the immigration officer and the Adjudicator respectively.  The Director and the Board had considered her evidence.

11.  She has not set out any reason why she considered the Court’s decision is wrong.

12.  The applicant appeared before me.  I asked her on what grounds would she say that my decision was wrong.  She said that she did not mean that my decision is wrong.  But rather, she wanted to state her situation now in Hong Kong.  She has married and her husband is ill.  He needs care and help from her.  She also felt that she would be in danger if she returned to Nepal.

13.  All of these are not good reasons for her intended appeal.

14.  Since the applicant has no reason to appeal, I decline to extend time for her intended appeal.

15.  I dismiss her application.