TRAN HONG XOA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1124/2025

[2025] HKCFI 5932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1124 OF 2025

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 5 September 2025 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4.  The Court’s decision was sent to the applicant on 5 September 2025 at his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision[1].

5.  The time for filing the notice of appeal expired on 19 September 2025[2].

6.  By summons filed on 22 September 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for 3 days.

7.  In his affirmation support of his application, the applicant said that he did not receive the Court’s decision and he did not understand English.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

9.  The Court will consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of his case.

10.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

11.  The applicant filed his notice of appeal with the Board out of time. The delay was over 5 years. The Board did not accept his explanation for the delay. In accordance with section 37ZT, the Board refused to extend time for him to file his notice of appeal.

12.  This Court had considered the Board’s reasons for refusing extension of time for his appeal and, for the reasons it had given, found that the Board had appropriately applied section 37 ZT to the applicant’s application.

13.  Those reasons under paragraph 7 are not valid for his delay.

14.  There is no valid reason from the applicant to challenge the Board’s Decision or the Court’s decision.

15.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.