Tamang Samjhana v. Director of Legal Aid

HCAL 1025/2018

[2020] HKCFI 2370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1025 OF 2018

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D E C I S I O N

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1.In this application for leave to apply for judicial review, the Applicant seeks to challenge the “Refusal of Legal Aid in relation to Court Decision dated 3 May 2018”. The Director of Legal Aid is named as the proposed respondent in the Form 86 dated 5 June 2018.

2.The Applicant has failed to state the relief sought, or the grounds on which relief is sought, in the Form 86 as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court, Cap 4A.  The requirement of Order 53, r 3(2)(a)(iii) is mandatory.  On this ground alone, the application for leave to apply for judicial review stands to be dismissed.

3.In her Affirmation filed in support of the application dated 5 June 2018, the Applicant merely states the following -

“The decision dated 3 May 2018 of Director of Legal Aid is unfair and unjust. I seek leave to challenge the said decision.”

4.A bare assertion that a decision is “unfair and unjust” plainly does not constitute a proper ground of judicial review of that decision with a reasonable prospect of success.

5.The following facts and matters appear from the Initial Response of the Director of Legal Aid dated 31 August 2020 -

(1)  On 10 May 2016, the Director of Immigration made an order for the removal of the Applicant.

(2)  On 23 May 2016, the Immigration Tribunal dismissed the Applicant’s appeal against the decision of the Director of Immigration.

(3)  On 22 March 2017, the Applicant applied for legal aid for her intended application for leave to apply for judicial review of the decisions of the Director of Immigration and Immigration Tribunal.

(4)  In view of the absence of evidence of any illegality, unreasonableness or procedural irregularity on the part of the Director of Immigration or Immigration Tribunal, and the Applicant’s delay in making the intended application, the Director of Legal Aid considered the Applicant’s intended application was not reasonably arguable, and made a decision on 19 May 2017 to refuse to grant legal aid to the Applicant.

(5)  On 23 May 2017, the Applicant lodged an appeal against the decision of the Director of Legal Aid (LAA 465/2017).

(6)  On 3 May 2018, the Deputy Registrar dismissed the Applicant’s legal aid appeal.

6.In so far as the present application is directed against the Director of Legal Aid, it is clear that he did not make any relevant decision concerning the Applicant on 3 May 2018.  Any application to challenge the decision of the Director of Legal Aid made on 19 May 2017 by way of judicial review would be misconceived because the Applicant had a statutory right of appeal against that decision, and she in fact exercised the statutory right of appeal (see Lee Chick Choi v Director of Legal Aid [2019] HKCA 275, at §§16-19; Xu Fangwen v Deputy Registrar of the High Court [2019] HKCFI 2332, at §§21-22).  Further, the present application was made more than 11 months after the date of the decision of the Director of Legal Aid.  No reason has been given for the delay in making the application.

7.In so far as the Applicant seeks to apply for leave to apply for judicial review of the decision of the Deputy Registrar dated 3 May 2018, there are no materials before the court to indicate that his decision was illegal or Wednesbury unreasonable, or made in a procedurally unfair manner.  Further, the Applicant has failed to name the Deputy Registrar as the proposed respondent in her Form 86.

8.For all of the above reasons, the application for leave to apply for judicial review is dismissed, with no order as to costs.

The Applicant acting in person

Ms Camille Shek, SGC (Ag), of Department of Justice, for the Putative Respondent