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

HCAL 2654/2019

[2025] HKCFI 5737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2654 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicants’ application by summons filed on 8 October 2025 for extension of time to appeal the order of this Court dated 19 June 2025 (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.

The law

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 the judge’s order to the Court of Appeal within 14 days after such order.  By the time the summons was filed, it was four months and five 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 four months in an appeal period of 14 days is very substantial.  The Applicant’s explanation for the delay as stated in her supporting affirmation is that she did not understand English, did not know how to file an appeal and had to ask for help from her friend.  She did not inform the Court when she received the Order or explain the circumstances occasioning the delay.  These are facts required to enable the Court to assess the reasonableness of the delay and the credibility of the explanation.  She did not advance any grounds of appeal either.  An oral hearing was therefore scheduled for her to explain the delay and inform the Court of her grounds of appeal.

Explanation for the delay

4.  At the hearing, the Applicant claimed that she just received the Order recently, which is obviously untrue.  When that was put to her, she admitted receiving it in June or July but tried to excuse herself by saying she was put in prison shortly afterwards and was not discharged until September.  It was put to her that her imprisonment did not entitle her to sit on the Order and to take no steps to appeal if she disagree with it.  She was also reminded that while in prison she could seek language assistance from the welfare officer and to file the appeal for her.  Then, she said she had asked her friend to help her to appeal when he visited her in prison.  It was put to her that it was her duty to appeal and if she entrusted that to her friend, she should check with her friend for progress.  She said she did check and was told by her friend that he had applied and she had to wait for information from the court.  However, after she was discharged from prison and appeared before a magistrate in Shatin Magistrates Court on 8 October 2025, she was informed by the magistrate that her appeal had not been lodged.  She said her friend had neglected his promise to help.   She then immediately went to the High Court to file her summons.

5.  The Applicant did not impress me as a truthful witness.  She started telling a blatant lie to the Court that she just received the Order. Then she kept on building her explanations as her excuses were refuted by the Court one by one.  She said she checked the progress of her application with her friend and was told that he had applied and she had to wait for reply from the court.  Either her friend let her down or all the excuses she gave were instant concoction before the Court.  One thing that is true is that she gave an affirmation before a Commissioner for Oath in the Judiciary and filed the summons in person on 8 October 2025.  This fact demonstrates that as soon as she was informed by the magistrate that her friend had not filed the appeal, she could file the summons and supporting affirmation in English within the same day, overcoming all her language problem and procedural hurdle which she claimed prevented her from filing a timely appeal.  She has no reasonable explanation for the delay.

6.  Even accepting her story that she received the Order in June or July before she was put in custody, and then she entrusted her friend to file an appeal, her account does not explain why she did not seek the assistance of the welfare officer to file the appeal, why it took her friend four months to file the application for extension of time, and why she did not check the progress of her friend’s application.  The time limit in the procedures are meant to be observed and not to be ignored simply because of lack of knowledge of the time limit.  Her explanation for the delay is not a reasonable one.

Grounds of appeal

7.  The grounds of appeal she advanced before the Court are that, first, she cannot return to Vietnam because her moneylender is still after her and will kill her.  This ground is in effect a challenge of the finding of fact by the Board, which the Court in a judicial review may not interfere save for errors of law, procedural unfairness or irrationality in the decision.  Second, she has no home and had nothing in Vietnam.  These are the Applicant’s personal issues which are irrelevant to her non-refoulement claim or to her intended appeal.  None of these grounds are arguable grounds of appeal.

8.  At the hearing of her leave application, after the legal principles applicable to judicial review had been explained to her, she confirmed she had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision.   The Court did not take her words for granted.  The Court conducted a rigorous scrutiny of the Board’s decision. The Board’s decision was made without a hearing pursuant to section 12 of Schedule 1A of the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.  It assessed the Applicant’s claim on the basis of the case as she asserted, but found as a matter of law that on those facts the Applicant was not entitled to protection.  The Court was satisfied that there were no errors of law, procedural unfairness and irrationality in the making of the decision: see paragraphs 24 and 25 of the Form CALL-1.  

9.  At this hearing, the Applicant was reminded of the above and invited to address the Court as to what in her view this Court had gone wrong in its decision.  She could not advance any other grounds.  As the Applicant could offer no reasonable explanation for the inordinate delay and arguable grounds of appeal, her application for extension of time to appeal is refused.