NGUYEN THI KHUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 634/2022

[2026] HKCFI 2756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 634 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.      Extension of time to file the leave application; and

2.      Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 19 July 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 23 February 2017 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 23 February 2017 refusing her application for non-refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 18 March 2026 was scheduled for her and notice of hearing was sent to her by post to her address as discovered from the Immigration Department on 20 September 2022 and confirmed on 5 February 2026.  The Notice has not been returned through the post.  The Applicant had never informed the court of her change of address since her discharge from Castle Peak Bay Immigration Centre which was her address she stated on her Form 86.  There is nothing to suggest that she had not received the notice.   A court staff attempted to contact her on her telephone number obtained from the Immigration Department on the afternoon of 17 March 2026 to remind her of the hearing.  The call was not answered.  The Applicant did not appear at the hearing.  The Court is satisfied that the notice of hearing had been validly served on her and that it had done all it could to bring the hearing to her notice.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.    

3.  The Applicant is Vietnamese national, now aged 49.  She and her husband arrived in Hong Kong on 10 December 2013 and overstayed since 18 December 2013.  On 24 January 2014, they raised a non-refoulement claim by written signification.  Their claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claim was rejected by the Director’s Notice.  Their appeal against the Notice was dismissed by the Board’s Decision.  The Applicant now applies for leave to apply for judicial review of that Decision.

The delay in taking out the leave application

4.  The leave application was filed 3 years 10 months and 20 days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made  promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  The leave application was made almost 3 years and seven months out of time.  The Applicant has to show very good and compelling reason for extending the time to file the leave application.

5.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[6], per Litton PJ.  

6.  Despite clear warning in the Form 86 that an applicant is required to state her reason for delay, if any, the Applicant provided no explanation for the very inordinate late application.  She did not appear at the hearing and forwent her last opportunity to explain her delay.  She has no reason for the more than three years’ delay. 

7.  The law requires that an application for delay shall be made in any event within three months from the date when the grounds for the application first arose decision, ie when the Decision sought to be reviewed was made, unless the court considers that there is good reason for granting extension of time to apply; and there is simply none.  The Applicant’s application is time barred.  The very inordinate delay reflects not only a lack of will to pursue her rights, but also an underlying lack of merits in the substantive application.

Conclusion

8.  For these reasons, extension of time to file the leave application and the leave application are refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1