PHAM THI LAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 191/2020

[2025] HKCFI 2975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 191 OF 2020

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D E C I S I O N

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Background

1.  By way of summons filed on 6 June 2025 (“the Summons”), the applicant applies for leave to re-open the application for judicial review and appeal out of time against my order dated 25 April 2025.

2.  My order made on 25 April 2025 was to dismiss the applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 13 December 2018.

3.  As I did not grant leave to the applicant to apply for judicial review, there was no judicial review application for the applicant to apply for its re-opening. Thus, I will treat the Summons as an application for leave to appeal out of time only.

4.  Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

5.  In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

6.  As my order was made on 25 April 2025, the last day for the applicant to lodge an appeal was on 9 May 2025. The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

7.  In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted (see Jagg Singh v Torture Claims Appeal Board and another [2020] HKCA 844).

8.  However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike [2019] HKCA 702).

Discussion

9.  In the applicant’s supporting affirmation dated 6 June 2025, the applicant alleged that she did not receive any judgment letter from the High Court regarding her judicial review application and therefore she did not know that the court had refused her application. It was only when she was reminded by the Immigration Department that she needed to file an appeal because her judicial review application was refused, then she checked the status of her application and found out that her application had been dismissed. She then immediately filed an application for an extension of time.

10.  However, at the hearing of the Summons on 8 July 2025, the applicant admitted to this court that she did receive my order on 31 May 2025 through the letterbox of her address. Although she was residing at the address provided to this court, she did not check the letterbox often as it was a shared letterbox with other residents. She took a picture of the letter from this court dated 25 April 2025 enclosing the order with her phone and the date of the picture as shown on her phone confirmed that she received the order on 31 May 2025.

11.  Thus, the applicant gave two versions of the reason for her delay in making the appeal. However, both versions do not appear to be credible to me. The applicant confirmed at the hearing that the contents of her supporting affirmation were explained to her before she signed on it. Hence, the contents must be correct to her before she signed. If the version about the Immigration Department informing her to appeal was not true, then she was making a false affirmation.

12.  It is also incredible that she would not check the letterbox for over a month and the other residents would not have told her that there was a letter for her in the letterbox for so long. Thus, I do not accept that there was a good reason for the delay. The delay, although not too long, was inexcusable.

13.  Moreover, there is no merits of the intended appeal or the intended judicial review at all.

14.  It is not necessary for me to repeat the details of the applicant’s case here as the same were set out in the Board’s decision dated 13 December 2018, which can be viewed in the hyperlink attached to the Form CALL-1 dated 25 April 2025.

15.  However, the applicant failed to advance any ground for the intended appeal in the Summons or her supporting affirmation. At the hearing on 8 July 2025, the applicant merely asserted that her problem in Vietnam had not been solved as she still could not repay the loan to the moneylender. She added that her children are in Hong Kong and they require her to take care of them. These matters cannot amount to any valid ground for the intended appeal or the intended judicial review at all.

16.  For this application to be successful, the applicant must demonstrate that this court had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

17.  The applicant failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal or the intended judicial review.

18.  Furthermore, as discussed in the Form CALL-1, the applicant’s alleged dangerous situation was duly considered by the Board. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

19.  In the circumstances, there is no reasonable prospect of success in the intended judicial review and I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

20.  For reasons aforesaid, the Summons is dismissed.