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

HCAL 134/2021

[2026] HKCFI 4199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 134 OF 2021

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DECISION

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Introduction

1.  The Applicant is a Vietnamese.  She surrendered to the Immigration Department on 10 May 2016 and lodged her non-refoulement claim on 24 May 2016. 

2.  The Applicant’s non-refoulement claim was rejected by the Director of Immigration on 2 February 2017.  The Applicant’s subsequent appeal to the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) was dismissed on 4 January 2018 (the “Board’s Decision”).

3.  By Form 86 filed on 5 February 2021, the Applicant applied for leave to apply for judicial review against the Board’s Decision (the “Leave Application”). The hearing of the Leave Application took place on 12 January 2026.  Proper notice of the hearing was given to the Applicant but the Applicant did not attend the hearing.  As a result, the Court proceeded to decide the Leave Application in the absence of the Applicant. 

4.  By the decision dated 4 February 2026 ([2026] HKCFI 581) (the “Court’s Decision”), this Court dismissed the Leave Application on the ground that the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success, and that the Leave Application was filed significantly out of time and without any valid explanation for the delay.

5.  By the Summons filed on 14 May 2026, the Applicant applied for extension of time to appeal against the Court’s Decision, as the 14‑day period for her to file the appeal under Order 53 rule 3(4) of the Rules of the High Court had expired (the “Application”).

6.  The Application was heard on 20 July 2026.  Notice of the hearing was issued to the Applicant at, inter alia, the address provided by the Applicant on the Summons in advance. Attempts were also made to remind the Applicant of the hearing by phone at the number provided by the Applicant on 13 and 14 July 2026 but in vain.  The Applicant did not attend the hearing.  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 shoulders of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  As proper notice of the hearing was given to the Applicant at the address provided by her on the Summons, I proceed to decide on the Application in the absence of the Applicant.  

Discussion

7.  In considering whether to extend the time to appeal, it is trite that the court will take into account: (1) the length of the delay; (2) the reason(s) for the delay; (3) the prospect of the intended appeal; and (4) the degree of prejudice to the other party if an extension of time is granted.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued.  (see Re Mushtaq Imran Ali [2025] HKCA 705, at §§16-17)

8.  In the present case, there was delay of about 3 months. The Court’s Decision was duly sent to, inter alia, the latest address provided by the Applicant to the Court.  In the supporting Affirmation, the Applicant said there was delay in receiving the Court’s Decision as she had moved to another address.  However, as mentioned above, it is the duty of the Applicant to provide the Court with an address to which correspondence or notice can come to her attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the Applicant.  In the premises, I do not consider that there is any satisfactory explanation for the delay.

9.  Despite the lack of satisfactory explanation for the delay, I shall still proceed to consider the merit of the intended appeal before deciding on the Application.

10.  In the Summons and in the supporting Affirmation, the Applicant did not provide any grounds in support of the intended appeal. 

11.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)). 

12.  I have considered the Court’s Decision together with the Board’s Decision in detail.  The Board had considered and provided adequate and valid reasons in dismissing the Applicant’s case.  The Applicant did not provide any valid grounds in support of the Leave Application.  The Court had reviewed the Board’s Decision, and came to the decision that there is no realistic prospect of success in the intended challenge of the Board’s Decision (§§11-12 thereof).  The Court equally found that there was no explanation for the delay in making the Leave Application (§§7-8 thereof).  I do not see any errors of law, procedural unfairness or irrationality in the Court’s Decision.  Neither has the Applicant made any such allegations.  It is incumbent upon the Applicant to demonstrate with sufficient particulars that the Court had erred in the Court’s Decision. The Applicant has plainly failed to do so.  Accordingly, I fail to see any prospect of success in the intended appeal. 

Conclusion

13.  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 hereby dismissed.