LUONG TRUNG THANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 510/2020

[2026] HKCFI 4198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 510 OF 2020

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DECISION

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Introduction

1.  The Applicant is a Vietnamese.  According to the record of the Immigration Department, the Applicant was arrested by the police on 2 February 2019 for illegally remaining in Hong Kong.  He lodged the non-refoulement claim on the same day. 

2.  On 10 April 2019, the Director of Immigration refused the Applicant’s non-refoulement claim.  The Applicant’s subsequent appeal to the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) was dismissed on 20 March 2020 (the “Board’s Decision”).

3.  By Form 86 filed on 6 April 2020, the Applicant applied for leave to apply for judicial review against the Board’s Decision (the “Leave Application”).  The hearing of the Leave Application took place on 6 May 2025 and the Applicant attended in person.  Despite having requested the oral hearing himself, the Applicant however indicated at the hearing that he had nothing to say in respect of the Leave Application. 

4.  By the decision dated 12 June 2025 ([2025] HKCFI 2196) (the “Court’s Decision”), this Court dismissed the Leave Application on the ground that the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.

5.  By the Summons filed on 6 July 2026, the Applicant applied for extension of time to appeal against the Court’s Decision, as the 14‑day period for him to file the appeal under Order 53 rule 3(4) of the Rules of the High Court had expired (the “Application”).

6.  The Application was heard on 20 July 2026 and the Applicant attended in person.  At the hearing, when being asked about the delay in making the Application, the Applicant said he had never received the Court’s Decision.  He said he made inquiries when his friends told him that they had already got their decisions for similar applications within one or two months.  When being asked for detail as to when and how he had eventually got a copy of the Court’s Decision, the Applicant said he had never received the Court’s Decision to date.  His friend had helped him to find out the decision and made the present Application.  The Applicant however confirmed that the address he has provided to the Court remains accurate.  

7.  Apart from the above, the Applicant indicated that he had nothing to say in respect of the Application.

Discussion

8.  In considering whether to extend the time to appeal, it is trite that the court will take into account: (1) the length of the delay; (2) the reason(s) for the delay; (3) the prospect of the intended appeal; and (4) the degree of prejudice to the other party if an extension of time is granted.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued.  (see Re Mushtaq Imran Ali [2025] HKCA 705, at §§16-17)

9.  In the present case, there was delay of about a year. The delay was very substantial.  The Court’s Decision was duly sent to the address provided by the Applicant to the Court, which the Applicant confirmed to be accurate at the hearing on 20 July 2026. The Court has not received any returned mail to date.  In the premises, I do not accept that the Applicant did not receive the Court’s Decision back in June 2025.  It is the duty of a litigant to provide the Court with an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  There is also no explanation as to what the Applicant had done between 6 May 2025 (the date of the hearing of the Leave Application) and 6 July 2026.  A reasonable person in the Applicant’s position would have made inquiries as to the status of the Leave Application if he had not received the Court’s Decision (as he alleged) after a reasonable period of time.  In the premises, I reject the explanation given by the Applicant in respect of the significant delay in making the Application.

10.  Despite the lack of satisfactory explanation for the delay, I shall still proceed to consider the merit of the intended appeal before deciding on the Application.

11.  In the Summons and in the supporting Affirmation, the Applicant did not provide any grounds in support of the intended appeal.  Despite being given a further opportunity to make submissions in respect of the Application at the hearing on 20 July 2026, the Applicant indicated that he had nothing to say in respect of the Application.

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)). 

13.  I have considered the Court’s Decision together with the Board’s Decision in detail.  The Board had considered and provided adequate and valid reasons in dismissing the Applicant’s case.  The Applicant did not provide any valid grounds in support of the Leave Application.  The Court had reviewed the Board’s Decision, and came to the decision that there is no realistic prospect of success in the intended challenge of the Board’s Decision (§§6-7 thereof).  I do not see any errors of law, procedural unfairness or irrationality in the Court’s Decision. Neither has the Applicant made any such allegations.  It is incumbent upon the Applicant to demonstrate with sufficient particulars that the Court had erred in the Court’s Decision.  The Applicant has plainly failed to do so.  Accordingly, I fail to see any prospect of success in the intended appeal. 

Conclusion

14.  As there is no satisfactory explanation for the delay, and more importantly no prospect of success in the intended appeal, I refuse to extend the time for the appeal.  The Application is hereby dismissed.