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HCAL 1199/2024
[2026] HKCFI 4253
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1199 of 2024
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BETWEEN
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Nguyen Bui Hien |
1st Applicant |
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Nguyen Bui Vi |
2nd Applicant |
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Nguyen Thi Van Anh |
3rd Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
5 August 2026 |
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D E C I S I O N
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The application
1. The 1st applicant is the father and the next friend of the 2nd applicant, his son and the 3rd applicant, his daughter, the twins, aged 15. They are nationals of Vietnam. The children’s claims are based upon the facts in support of the father’s claim.
2. The applicants are illegal immigrants by staying in Hong Kong without permission and they lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.
3. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.
4. By Judgment dated 13 May 2025 (“the Court’ decision”), the Court dismissed their application as there was no realistic prospect of success in their intended application.
5. The Court’s decision was sent to the applicants’ last known address on 13 May 2025 without being returned by the Post Office. They were deemed to receive the Court’s decision.[1]
6. The deadline for them to file their notice of appeal is 27 May 2025[2]. They are late for more than 1 year.
7. In their summon filed on 18 June 2026, the applicants asked for extension of time to file their notice of appeal. In the father’s affirmation in support of their application, he said that he did not receive the Court’s decision.
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.
10. I shall consider the merits of their case.
11. 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].”
12. The applicants’ claim was based upon the father’s allegation that if refouled, the father will be harmed or killed by his creditor because he was unable to repay his debt. The children will also be ill-treated as well.
13. The Director rejected their application because their claim was not substantiated. They appealed to the Board.
14. The Board agreed with the Director that their claim was unsubstantiated.
15. The Board also had separately consideration of the child specific issues for the children.
16. The applicants have raised no valid ground to challenge the Board’s finding of the facts or to challenge the Court’s decision.
17. There is no realistic prospect of success in their intended appeal.
18. In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their application.
19. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2nd and the 3rd applicants’ application a nullity.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicants were unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. … According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. …”
[2] O,53, r.4
(4) Where an application for leave is refused by a judge or granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.
1. Reckoning periods of time (O. 3, r. 2)
2. (5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:
“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”
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