EYEVE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 752/2020

[2026] HKCFI 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 752 OF 2020

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BETWEEN

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DECISION

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1.  By a summons issued on 17 September 2025 (“Summons”) supported by an affirmation of the same date (“Affirmation”) the Applicant sought “leave to appeal out of time” my order dated 31 July 2025 (“Order”), which I had made for reasons given in [2025] HKCFI 3060 (“Leave Decision”), wherein I had refused her application for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) / Non-Refoulement Claims Petition Office (“NRCPO”) dated 17 April 2020 (“TCAB Decision”).

2.  The relevant considerations in relation to such an application are the length of the delay, the reasons for the delay, the prospects of the intended appeal, and the prejudice to the respondent if an extension of time is granted (see Re Gurung Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346, Nguyen Van Quyen [2025] HKCA 510). However, the prospect of success is important as the court will not grant an extension of time to pursue a hopeless appeal (Tran Van Anh [2025] HKCA 408).

3.  The Summons did not explicitly identify any ground of appeal, but merely sought “leave to advance a new sole ground of appeal” which it did not identify. However, in the Affirmation:

(1) The Applicant claimed that the Leave Decision was reached unfairly “without allowing [her] an opportunity to clarify my case and the situation in country”, which she said at the hearing before me was her sole ground of appeal;

(2) She also claimed that she “did not receive any correspondence from the Court regarding the Judicial Review be refused” and that as she was “a litigant in person, illiterate and unrepresented” she was thereby “unaware of the rules regarding the 14-day time limit”; and

(3) She requested the court “to allow my appeal out of time and give a chance to explain”.

4.  As I did not direct that time run during the summer vacation, and as 14 September 2025 was a Sunday, I approach the application on the basis that the deadline for the Applicant to file a notice of appeal against my Order was 15 September 2025: see Do Hung Loi v Torture Claims Appeal Board / Non-refoulement Claims Petition Office [2023] HKCA 1081 at §12; Re Muhammad Ali Pahat [2025] HKCA 657 at §3, Qaisar Naeem [2025] HKCFI 3959; RHC O. 3 r. 4. Since the delay is hence relatively minimal, I shall focus on the merits of the appeal.

5.  In that regard I see no basis (in the nature of an error of law, a failure to take account of relevant matters already placed before the court, or that I was plainly wrong) on which the Court of Appeal would reverse my decision (Nupur Mst v Director of Immigration [2018] HKCA 524):

(1) As the Applicant did not request an oral hearing (including in her Form 86 and her affirmation in support of her leave application), I was entitled to deal with the application on the papers and was not obliged to hold an oral hearing (RHC O. 53 r. 3(3); Akram Muhammad [2022] HKCA 445 at §§10, 18).

(2) With that said, at the hearing and out of an abundance of caution I asked the Applicant whether she had anything to say in relation to her sole ground of appeal, and whether she wanted to (as claimed in the Affirmation) clarify her case and the situation in her country. All she said in response was that her baby (who she claimed was a Hong Kong citizen) was very small and she needed to breastfeed him, hence she could not go back at present and she needed and asked to be allowed “some more time”. She also expressed her gratitude to Hong Kong and to the court.

(3) I do not see how any of the Applicant’s claims constitute or give rise to any viable grounds of appeal that would justify reversing the Order and my decision. This is so given the nature of judicial review proceedings which, as I pointed out in the Leave Decision are not a further avenue of appeal, and when in the Leave Decision I had reviewed the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard, and saw no reasonably arguable public law grounds to vitiate such. Moreover, her family circumstances are not valid grounds or a relevant consideration in relation to her own non-refoulment claim (Oguzie Ikechukwu Charles [2022] HKCA 135; Bool Lorenza Atienza & ors. [2024] HKCA 1154 at §16).

6.  Given the above, an extension of time for the Applicant to advance a hopeless appeal would substantially and needlessly prejudice the respondent.

7.  Mainly for the sake of completeness, in relation to the reason for the (relatively minimal) delay the Applicant claimed at the hearing that she had only learnt about my Order from the Sha Tin Court Duty Lawyer on 13 September 2025, which is a Saturday. She also said that she had not updated the Immigration Department or the Court with her address as provided in her Summons and Affirmation[1], even though she had moved to it more than 2 years before the hearing in October 2025, as she was under the impression that once she had (due to other proceedings) updated Sha Tin Police Station with the said address, the same would be circulated everywhere.

8.  I do not consider that there is hence a good or valid reason for the delay, as the Applicant had apparently failed to update the Court and the Immigration Department with her new address in circumstances where it is her duty to give the court, and the Immigration Department, an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address falls on her shoulders (Hasmi Rizwan Imran HKCA 439 at §§14-15; Rai Tika Kumari [2025] HKCA 78).

9.  In the circumstances, and notwithstanding the relatively minimal delay in this case, I therefore refuse the application for leave to appeal out of time, and dismiss the Summons.