PHOPHETLEP RUANGLID AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 592/2021

[2026] HKCFI 3220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 592 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   Leave file the leave application out of time be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 28 April 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 9 July 2018 refusing their request to make a subsequent claim (the “Request”). The 1^st Applicant (the “mother”) is the mother of the 2^nd Applicant (the “daughter”).

Background and procedural history

2.  In brief, the mother came to Hong Kong as a visitor in 1995 and was permitted to stay as a dependent of her mother until June 2005.  She became a drug addict since 2006 and was sentenced to 5 years and 14 days’ imprisonment.  She claimed if returned to Thailand she would be harmed or killed by a drug trafficker who believed she had provided information to the Hong Kong police leading to the raids of his various premises where dangerous drugs were stored.  Fearing for her safety, the mother lodged a torture claim on 3 October 2008 by written signification shortly before her discharge from prison on 24 November 2008.  She did not return to Thailand.  She developed a relation with an Indian and gave birth to the daughter on 25 October 2011.  The Indian had since returned to India and the mother had lost contact with him.

3.  On 11 October 2012, the Applicants lodged a torture claim by written signification.  Their claim was rejected by the Director’s Notice of Decision dated 26 March 2013.  Then, by way of a written representations dated 18 February 2015 and 12 May 2016, they lodged a non-refoulement claim.  But on 8 September 2016, they withdrew their claim.  On 4 June 2018, they applied to re-open their claim.  But their application was rejected by the Director’s Notice of Decision dated 9 July 2018 (the “2018 Notice”).  Then, on 27 July 2018, they filed a notice of petition out of time against the 2018 Notice.  Their application was refused on 4 February 2019.

Legal representation for the 2^nd Applicant

4.  The Applicants are nationals of Thailand.  The 1^st Applicant is the mother of the 2^nd Applicant (respectively, the “mother” and “daughter”). The mother is now aged 46.  The daughter is now aged 14.  As the 2^nd Applicant is a minor, the 1^st Applicant representing her had been advised by this Court’s letter dated 12 December 2025 of the requirement under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2^nd Applicant so that her specific interest may be fairly put before the court.  She had been advised to seek legal representation from a private lawyer or from the Legal Aid Department.  At the hearing, both Applicants were not legally represented.  As the issues raised by this application are mainly procedural and legal; and no interests peculiar to minors would be involved, the Court considered their leave application may be justly determined despite the absence of legal representation for the 2^nd Applicant.  The Court was satisfied that the absence of legal representation was a mere irregularity which would not render the proceedings void.  The Court proceeded to make the determination.

The 2018 Notice is not reviewable

5.  The Applicants are seeking leave to apply for judicial review of the Director’s 2018 Notice.  The 2018 Notice is the first tier decision of a two tier decision making process.  The Decision of the Board is reviewable by judicial process, but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board: Re Moshsin Ali[1]. As noted above, the Applicant had pursued that course.  They had petitioned against that 2018 Notice on 27 July 2018, but their petition was refused for being made out of time.  The Applicants did not timely invoke the second tier process.  With expiry of time to appeal, the Director’s decisions in the 2018 Notice is no longer appealable and became final.  There are no merits in the intended judicial review.

The delay in taking out the leave application

6.  The leave application was filed 2 years 9 months and 20 days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made  promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  The leave application was made more than two and half years out of time.  The 1^st Applicant has to show good reason for extending the time to file the leave application.

7.  In AW and Director of Immigration and William Lam[2], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[3], per Litton PJ.  

8.  Despite clear warning in the Form 86 that an applicant is required to state their grounds for application and reasons for delay, if any, the Applicants provided no explanation for the late application.  At the hearing, the Court attempted to explore the reasons for the delay with the 1^st Applicant.  Her explanation is that she does not know the law, the procedure and the time limits.  She also attempted to justify the delay for having to move around living in different places.  That could not explain why it took her more than two years and nine months to take out the application.  The Applicants have no reasonable explanation for the very inordinate delay.  The delay is so substantial as to be beyond the limits which any court could indulge under the principle in Po Fun Chan v Winnie Cheung.  The delay is so excessive as to suggest the application is an abuse of process.  Furthermore, for reasons as explained in the preceding section, the 2018 Decision is not susceptible to judicial review and is now final.

Conclusion

9.  The leave application was taken out more than two and half years out of time.  The Court could not find any good reason to extend the time for filing the leave application. In addition, the 2018 Notice sought to be reviewed is not susceptible to judicial review as a matter of law.  The leave application has absolutely no prospect of success. Accordingly, the leave application is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1