DAM VAN TIEP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1686/2021

[2026] HKCFI 2996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1686 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  The Applicant is a national of Vietnam. On 18 May 2020, he filed his claim for non-refoulement protection. In gist, he claimed that he would be harmed or killed by his creditor or his followers. The claim was assessed by the Director of Immigration (the “Director”) on all applicable grounds under the Unified Screening Mechanism (“USM”). By a decision dated 27 July 2020, the Director dismissed his claim (the “Director’s Decision”).

2.  The Applicant subsequently challenged the Director’s Decision before the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”). By a decision dated 19 August 2021, the Board confirmed the Director’s Decision (the “Board’s Decision”).

3.  By a Form 86 filed on 14 December 2021, the Applicant sought leave to apply for judicial review against the Board’s Decision (the “Leave Application”). The Leave Application was lodged out of time. The Applicant requested for a hearing but did not attend the said hearing. By a decision dated 9 March 2026 [2026] HKCFI 1070 (the “Court Decision”), the Court dismissed the Leave Application as there was no good reason to extend time for the Applicant to apply for leave to seek judicial review on the ground that the intended judicial review was not reasonably arguable.

4.  By Summons filed on 16 April 2026, the Applicant applied for an 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”).

5.  The Applicant attended the hearing of the Application on 13 May 2026.

Discussion

6.  In considering whether to extend the time to appeal, the Court shall have regard to (1) the length of the delay; (2) the reason for the delay; (3) the prospect of success regarding the intended appeal; and (4) any prejudice to the putative respondent if an extension of time is granted. In particular, the prospect of success of the intended appeal is important. The Court will not grant an extension of time to appeal for a hopeless appeal to be pursued.[1]

7.  In the present case, the delay in question is almost 3 weeks.

8.  The Applicant’s purported reason for the delay is set out in his Affirmation. He states that “I have not received any letter from the High Court and further I do not speak English or Chinese, so I had to seek help from my friends to help me submit my appeal to the High Court.” At the hearing, I asked the Applicant when did he eventually receive the Court’s Decision, he said he had never received it.

9.  I do not consider the Applicant’s explanation to be satisfactory.

10.  First, there is no documentary evidence in support of the said explanation.

11.  Second, the Court’s Decision was duly handed down and a copy was sent to the Applicant by post with no record of returned mail as at the date of this decision. The Applicant has not filed any Notice of Change of Address to-date, despite having a new address stated on his Summons. It is the duty of a litigant to give the Court 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 shoulder of the litigant.[2]

12.  Third, when asked if he had never received the Court’s Decision, how did he find out the Leave Application was refused, he said a clansman had told him the same on the phone but he could not remember when was that. He also added that on 16 April 2026, he asked his friend to submit the Application.

13.  More importantly, the Applicant has not provided any grounds in support of the intended appeal in the Summons and the supporting Affirmation. At the hearing, the Applicant also did not make any submission as to why the Court’s Decision was erroneous.

14.  The Court had already reviewed the Board’s Decision and came to the view that the intended judicial review was not reasonably arguable with any realistic prospect of success. Likewise, I do not consider there to be any prospect of success in the intended appeal.

15.  It is therefore not necessary to consider any potential prejudice caused to the putative respondent.

Conclusion

16.  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 accordingly dismissed.