NGUYEN THANH HAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1850/2019

[2025] HKCFI 2926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1850 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 6 May 2025 (the “Application”) for extension of time to appeal the order of Deputy High Court Judge Reuden Lai dated 15 January 2025 (the “Order”) refusing him 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 “Board”).  His claim before the Board was his fear of being harmed or killed by his creditor for being unable to repay the debt owed to the creditor. 

The law

2.  The Application was filed three months and twenty-one days after the date of the Order sought to be challenged.  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.  The Application is two months and seven 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.

Explanation for the delay

3.  The delay of three months and seven days in an appeal period of 14 days is very substantial.  The Applicant’s explanation for the delay as stated in his Summons and supporting affirmation is that he never received the Order and Form CALL-1.  He was detained in Castle Peak Bay Immigration Centre (“CIC”) when the Order was issued.  He did not know about the Order until he was informed by an officer of the CIC.  He did not inform the Court when he was detained in the CIC and when he was informed by the officer the Order.  These are facts required to enable the Court to understand the factual circumstances and to assess the reasonableness of the delay and the credibility of his explanation.  More importantly, he did not advance any grounds of his intended appeal, which is an essential and necessary requirement in an application for extension of time to appeal.  It is required to enable the Court to assess the prospect of success in the intended appeal on which the exercise of the Court’s discretion to grant leave depends.  Hence, on 10 June 2025 the Court gave him directions to file a statement or affirmation within fourteen days providing these particulars and his address immediately before his current detention in the CIC and the grounds of his intended appeal.

4.  The Applicant responded and provided the particulars by way of a written statement.  The picture which emerged from these particulars is as follows. The Applicant filed his Form 86 on 3 July 2019 giving an address at Fa Yuen Street.  He did not request an oral hearing.  He never informed the Court of any change of address, but had subsequently moved to Canton Road.  He was then detained in CIC since 3 December 2025.  The Order and Form CALL-1 were issued to his address as stated in his Form 86 on 15 January 2025.  Pausing here, the information provided by the Applicant and the incontrovertible evidence conclusively proved that he did not receive the Order and Form CALL-1 because he never updated his address with the court since he filed his Form 86.  As was held by the Court of Appeal in Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], it is the applicant’s obligation to keep the court informed of his means of contact.  If he does not, he has to bear the consequence which his failure brings.  In the circumstances, he has to bear the consequence which his failure brings. 

5.  What happened then was as follows.  The Applicant was informed of the Order and Form CALL-1 about two weeks after his detention.  He must have been mistaken about the timing, but no doubt he received the information soon after the issue of the Order in January 2025.  However, he sat on the information until 6 May 2025 when he formally filed the Summons seeking extension of time to appeal.  Even allowing for some delay occasioned by his incarceration, he sat on the matter for two to three months.  That delay is inordinate and unexplained.  The Applicant has to bear the consequence of his neglect.  He has no reasonable explanation for the very substantial delay. 

Prospect of success of the intended appal

6.  The grounds of his intended appeal as provided by him in his statement filed pursuant to the Court’s directions are that he has to take care of his daughter who is now aged six and alone in Vietnam.  There is no one to take care of her.  The Applicant claimed that he cannot return to Vietnam to take care of her and had to take care of her in Hong Kong. Presumably, he would cause someone to bring her to Hong Kong.  However, sympathetic one may be towards him and his daughter, these facts even if true could not constitute any arguable grounds of appeal.  The safety of his daughter never even featured in his non-refoulement claim.  He made no allegation of errors of law, procedural unfairness or irrationality in the decision of the Board or in Deputy High Court Judge Reuden Lai’s decision in refusing him leave to apply for judicial review of the Board’s decision.  He has advanced no grounds of appeal which has any prospect of success. 

Conclusion

7.  For the above reasons, the Applicant’s application for extension of time to appeal is refused.