LAM THI TAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1784/2023

[2026] HKCFI 4607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1784 OF 2023

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BETWEEN

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D E C I S I O N

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Background

1.  By way of summons filed on 9 July 2026 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 3 June 2026, which dismissed the applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 11 September 2023.

2.  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”.

3.  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).

4.  As my order was made on 3 June 2026, the last day for the applicant to lodge an appeal was on 17 June 2026. 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

5.  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).

6.  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

7.  In her supporting affirmation dated 9 July 2026, the applicant explained her delay in lodging the appeal by saying that she had no legal training and did not understand Hong Kong legal procedure including the applicable time limits for filing an appeal and she was not provided with legal assistance.

8.  However, at the hearing of the Summons on 6 August 2026, the applicant explained her delay by saying that she did not receive the court’s decision because she was detained in custody, she was arrested on 13 May 2026 and then transferred to Castle Peak Bay Immigration Centre (“CIC”) on 27 May 2026. When I asked her why she did not mention this reason in her affirmation, she simply said that she did not know that she needed to do that.

9.  The explanations given by the applicant in her supporting affirmation and at the oral hearing are clearly unsatisfactory, as they do not tally with each other. In any event, ignorance of the court procedure and time limit cannot be an excuse for her delay. There is also no right for her to have free legal assistance at every stage of the proceedings. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).

10.  Even if the applicant was detained in custody, she could still obtain this court’s decision and lodge her intended appeal through the officers at CIC. Thus, I do not find that there was any reasonable excuse for her delay.

11.  Moreover, the applicant did not provide any valid ground for her intended appeal. In the Summons, the applicant alleged that she could advance a new sole ground of appeal without specifying what it was.

12.  At the hearing of the Summons, when I asked the applicant for her grounds of appeal, she said that she had no knowledge regarding the whole process and hence she could not explain clearly. She also said that she just wanted to proceed with the appeal so that she could be released on bail. Then I asked the applicant what was wrong with my decision, and she simply said that her issue in Vietnam had not yet been arranged or managed properly, and hence she could not go back at this time. Thus, the applicant did not explain why my decision was wrong.

13.  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).

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

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

Conclusion

16.  For reasons aforesaid, the Summons is dismissed.