DINH THI THUY HOA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 559/2022

[2026] HKCFI 4466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 559 OF 2022

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 24 June 2026 for extension of time to appeal the order of this Court dated 27 March 2026 (the “Order”) refusing her leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office. 

Discussion

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review 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.  By the time the summons was filed, the application is two months and four days out of time.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that 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.  If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.  If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

3.  The delay of more than two months for an appeal period of 14 days is very substantial.  In her supporting affirmation, the Applicant claimed that she had not received any letter from the High Court, presumably meaning the Order sought to be appealed.  Her address as stated in the summons and supporting affirmation is at Tam Kung Road.  The Court notes that the notice of hearing, the notice of handing down of the decision, the Order and Form CALL-1 were all sent to her address in Pang Ching Street as stated in her Form 86 and her last known address in Lai Chi Kok Road as discovered from the Immigration Department and that the Applicant did not appear at the hearing. Indeed, correspondences sent to her Pang Ching Street address were often returned with a remark that there was no such person living at that address. The Applicant has not updated her correspondence address with the court since filing her Form 86.  In the circumstances, the Court accepts that the Applicant has not received the Order and Form CALL-1.  The most probable reason for her not having received the Order is that she had not updated her correspondence address with the court.  Furthermore, the Applicant has not stated the grounds of her intended appeal.

4.  To assist her to present a proper application for extension of time, this Court gave her directions on 10 July 2026 to file a statement or affirmation within fourteen days stating: (1) the reasons why it took her more than two months to make the application; (2) the date when and the circumstances under which the Order sought to be appealed was first brought to her notice; and (3) the grounds of her intended appeal.  She was also informed that her application for extension of time will be determined on paper 21 days after the date of the directions regardless of whether the directions have been complied with.  The Applicant did not respond. 

5.  As at the date of issue of this decision, more than twenty-one days have lapsed.  The inference to be drawn from the Applicants’ failure to respond is that she has no reasonable explanation for the delay, no arguable grounds of appeal and even lacks the will to prosecute her intended appeal.  In the absence of an explanation for the substantial delay and a statement of the grounds of her intended appeal for the Court to assess the prospect of success of her intended appeal, there is no basis on which the Court may exercise its discretion to grant her extension of time.

6.  Furthermore, as mentioned above, the most probable reason for the non-receipt of the Order is the Applicant’s failure or neglect to update her correspondence address with court.  In Karamjit Singh[2], the Court of Appeal held it is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner.  If he did not, he has to bear the consequence of any delay occasioned by his neglect.

7.  For these reasons, the Applicant’s application is refused.