Gurung Minu v. Torture Claims Appeal Board and Another

HCAL 1430/2018

[2019] HKCFI 956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1430 OF 2018

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D E C I S I O N

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THE BACKGROUND

1.The applicant is an illegal immigrant and she lodged a non‑refoulement claim with the Director of Immigration (“the Director”) on 7 February 2014. After screening by the Immigration officer, by Notice of Decision dated 15 May 2015 (“the Director’s Decision”) and Notice of Further Decision dated 30 March 2017 (“the Director’s Further Decision), collectively called (“the Director’s Decisions”), the Director refused her application for the reason that her non-refoulement claim was not substantiated.

2.She appealed to the Torture Claims Appeal Board/Non‑refoulement claims Petition Office (“the Board”) and she attended a hearing before the Adjudicator on 9 August 2016. Having considered her evidence, the Board, by its Decisions dated 22 February 2017 and 2 March 2018 (“the Board’s Decisions”), rejected her appeal and confirmed the Director’s Decisions.

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 for judicial review of the Director’s Decisions and the Board’s Decisions. She asked for a hearing and appeared before this Court on 9 January 2019.

4.At the hearing, I noted that her application was out of time. But she had not taken out any application for extension of time. Her application could not be entertained without obtaining leave from the court to take out the application out of time.

5.As she was not represented, I took into consideration that she might not know the proper procedure under Order 32, rule 1 of the Rules of the High Court to take out the application by summons. Nevertheless, I considered whether time should be extended for her to proceed with her application.

6.Having considered the Board’s Decisions and her submission before me, I refused to grant her extension of time for her application for leave for judicial review of the Director’s Decisions or the Board’s Decisions. I have given the reasons for rejecting her application in Form Call-1 dated 8 March 2019 (“the Court’s Decision”). Accordingly, I dismissed her application. In the same Order, I also directed that if she wanted to appeal my decision, she should apply for leave within 14 days from the date of the Order.

THE APPLICATION

7.The applicant intends to appeal to the Court of Appeal against my decision. She has taken out a summons supported by an affirmation for her application.

8.In her affirmation, she had raised the following issues:

(1)   she did not have legal assistance and she had not been screened for the BOR 2 risk;

(2)   although her family had explained the Board’s Decision to her, that does not mean she fully understands it and it is not fair;

(3)   there was no explanation why some of her friends obtained legal representation but she did not;

(4)   she considers that her intended judicial review has a prospect of success as the court should take into account her vulnerability and fear of persecution ifshe were refouled; and

(5)   the court had wrongly made the decision because she was not given the guidelines and opportunity to put forward her grounds for her appeal.

9.Issue (1) had been dealt with in paragraph 24 of the Court’s Decision. Issue (2) is irrelevant because it is her own duty to obtain assistance to understand the Board’s Decision. She may obtain assistance from the Board, the Duty Lawyer Scheme, the Legal Aid Department or other sources that she trusts. She has not even identified which part(s) of the Board’s Decision she cannot understand. Issue (3) does not require any answer as she has not pointed out other cases she wished to rely upon. Each case must be considered on its own facts and merits. It is useless to speculate what happened to other cases. Issue (4) is only her opinion, which this Court did not accept. The reasons have been set out in the Court’s Decision. Issue (5) is likewise irrelevant as it is her opinion. She has not identified what guidelines or opportunity she meant. She had been given plenty of opportunity of putting forward her grounds for her appeal.

10.In the circumstances, I dismiss her application for leave to appeal the Court’s Decision to the Court of Appeal. Her application has been dealt with by this Decision. It is unnecessary to hold a hearing for that purpose.

The Applicant acted in person