RE LUU THI NAM

HCAL 1766/2018

[2022] HKCFI 2155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1766 OF 2018

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by remaining in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decisions, rejected her application and she appealed to the Torture Claims Appeal Board (the “Board”). Having considered her evidence, the Board, by its Decisions (the “Board’s Decision”), rejected her appeal and affirmed the Director’s Decisions.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decisions.

3.  By Form CALL-1 dated 23 June 2020 (the “Court’s decision”), the Court granted leave to the applicant to apply for judicial review of the Board’s Decision.

4.  The applicant filed a summons on 4 July 2022 for appeal against the Court’s decision out of time.

5.  In her affirmation in support of her application, she said she did not receive the Court’s decision.

Discussion

6.  The Court had granted leave to the applicant to apply for judicial review of the Board’s Decision in June 2020. In the Court’s decision, the Court ordered that the application should take out her application in accordance with Order 53, rule 5 of the Rule of the High Court.

7.  Order 53, rule 5(5) provides:

“An originating summons must be issued for hearing within 14 days after the grant of leave.”

8.  Over a period of about 2 years, the applicant has not taken the application. Although the applicant stated that she did not receive the Court’s order, as she had taken out the application herself, it is unreasonable for her to leave the matter in abeyance for over 2 years without making any enquiry with the court.

9.  Pursuant to Order 42, rule 2 of the RHC and Practice Direction-16.5, this Court now orders that unless the applicant issues an originating summons for judicial review of the Board’s Decision within 14 days of the service of this Order, the applicant’s application shall be deemed to have been abandoned, the leave granted shall be set aside and her application be dismissed forthwith.