RE LUU THI NAM

HCAL 1766/2018

[2022] HKCFI 3682

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.  This is the applicant’s application for extension of time to issue an originating summons pursuant to the Court’s leave for the applicant to apply for judicial review of the Board’s Decision as described in paragraph 2 below and to comply with the Court’s order dated 28 July 2022, which provided that unless the applicant issues an originating summons for judicial review of the Board’s Decision within 14 days after the Order, her application shall be deemed to have been abandoned and the leave shall be set aside and her application be dismissed forthwith (the “Unless Order”). The applicant’s application is made under the circumstances below.

2.  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 Decision, rejected her application and she appealed to the Torture Claims Appeal Board (the “Board”). Having considered her evidence, the Board, by its Decision (the “Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

3.  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 Decision.

4.  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. Under Order 53, rule 5(5), the originating summons must be issued for hearing after the grant of leave.

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

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

Discussion

7.  The Court had granted leave to the applicant to apply for judicial review of the Board’s Decision in June 2020. The reason for granting leave is because the Board failed to consider the merits of the case before it decided not to extend time for the applicant to file her notice of appeal with the Board as required by the Court of Appeal in Re Khan Kamal Alhmed [2019] HKCA 377.. The law for this requirement has been revised and the new legislation provides that it is unnecessary for the Board to consider the merits of the applicant’s case now. However, at the time of the Board’s Decision, the law was not yet revised.

8.  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.

9.  Order 53, rule 5(5) provides:

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

10.  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.

11.  Pursuant to Order 42, rule 2 of the RHC and Practice Direction-16.5, the Court ordered 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.

12.  In the affirmation in support of her application, the applicant said:

“Because of my old age not knowing English or Chinese, I did not know how to read the Order of 28 July 2022 from the Court. I did not know the court give me 14 days to file 86A because of my lack of knowledge and my old age , I did not know how to do. I had to ask some friends who know to guide me. I hope the Court extend of time for me to file form 86A.”

13.  There is no reason for the applicant to sit on the matter for about 2 years without issuing the originating summons to apply for judicial review of the Board’s Decision. The applicant had gone through the screening process and the appeal process before the Board. She was assisted by the duty lawyer as the Dirctor’s Decision dated 8 July 2015 was sent to the Duty Lawyers Service. She was at liberty to seek assistance from the Duty Lawyers Service. She has given no reason for not doing so. Up till now, she has not informed the Court when she will issue the originating summons.

14.  In the circumstances, the Court is not satisfied that the applicant has sufficient reason to delay her application for leave to judicial review the Board’s Decision or to comply with the Unless Order. Her request is therefore declined and the Unless Order should take effect immediately.