BUI DUY HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 709/2020

[2026] HKCFI 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 709 OF 2020

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D E C I S I O N

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1.  By a summons issued on 18 November 2025 (“Summons”) supported by an affirmation of the same date (“Affirmation”) the Applicant sought “leave to appeal out of time” my order dated 16 October 2025 (“Order”) wherein I had, for reasons set out in [2025] HKCFI 4423 (“Leave Decision”), refused his application for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 26 March 2020 (“TCAB Decision”).

2.  The relevant considerations in relation to such an application are the length of the delay, the reasons for the delay, the prospects of the intended appeal, and the prejudice to the respondent if an extension of time is granted (see Re Gurung Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; Nupur Mst [2018] HKCA 524; Nguyen Van Quyen [2025] HKCA 510). The prospect of success is important as the court will not grant an extension of time to pursue a hopeless appeal (Tran Van Anh [2025] HKCA 408).

3.  The Summons and Affirmation did not explicitly identify any ground of appeal. Rather, in the Affirmation:

(1)  The Applicant apparently sought to explain the timing of his Summons by claiming that he had “no knowledge about English” and no financial means to obtain legal advice[1]. He claimed that “Once it passed 14-day limit, I thought I have lost my right to appeal and there was no further remedy available”. He apologised for his negligence.

(2)  The Applicant claimed that:

(a)  He did not understand how important the TCAB Decision was, and that when he filed his Form 86 (which he said was prepared by a Duty Lawyer) on 20 April 2020 he was incarcerated and had not received the TCAB Decision “in person because I was stuck in the cell”. He hence asked for the court to give him “some more time to find the [TCAB Decision] and submit it to the court later”; and

(b)  He claims to understand “that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave of judicial review” and to believe “that the merits of this ground of appeal constitute sufficient reason justification” for me to allow him to appeal out of time[2].

4.  As the 14-day period for the Applicant to appeal against the Order expired on 30 October 2025 (RHC O. 53 r. 3(4)), there is a delay of just over 2 ½ weeks. I do not consider that I have been given a satisfactory explanation for the delay as:

(1)  The fact that the Applicant is a litigant in person and may be ignorant of the rules of court is not a justification for the delay (Pascua Janice Alcaraz [2025] HKCA 579), particularly when he has chosen not to explain exactly how and when he learnt of the Leave Decision, which was sent to him by post at an address provided by the Immigration Department on 12 May 2025 (which is the same address given in his Summons and Affirmation), and which has not been returned undelivered; and

(2)  In relation to his claims in relation to English, the Form 86 and the affirmation filed in support thereof were in English with no translation clause, and both the present Summons and Affirmation are in English (the latter of which contains a translation clause). Hence either the Applicant is himself conversant with English, or he has access to language assistance of his own if necessary.

5.  With that said, and in any event, I would focus on the merits of the intended appeal, as to which I see no basis (in the nature of an error of law, a failure to take account of relevant matters already placed before the court, or that I was plainly wrong) on which the Court of Appeal would reverse my decision (Nupur Mst v Director of Immigration [2018] HKCA 524), given that:

(1)  As I pointed out in the Leave Decision, judicial review proceedings are not a further avenue of appeal. Moreover, I had in the Leave Decision reviewed the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard, and saw no reasonably arguable public law grounds to vitiate such.

(2)  The Applicant has failed to identify any ground of appeal, let alone one which is sufficiently particularised. In any event, for reasons above I do not see any reasonable argument that he has been prejudiced by reason of any alleged language limitations. I also do not accept the Applicant’s claim that he somehow needs more time to find and submit the TCAB Decision to the court, given that the TCAB Decision was clearly referred to and linked in the Leave Decision which (as I have said) was sent to him by post and has not been returned undelivered, and when the Applicant has failed to explain when and how he learnt of the Order. In the circumstances I also do not see or understand how his related claim that he apparently did not have access to the TCAB Decision when the Form 86 was filed gives rise to any ground of appeal with any prospect of success (including any one based on any allegation of prejudice) particularly when the Applicant:

(a)  In his Form 86 (which he says was prepared by a Duty Lawyer) and affirmation in support of the leave application did not suggest that he intended to submit further documentation (including the TCAB Decision) in relation to his leave application after his release from prison;

(b)  Had, in any event, ample opportunity to obtain, submit, and make submissions in relation to, the TCAB Decision after he was released from prison in May 2020; and

(c)  Did not request an oral hearing, which meant that I was not obliged to hold one, and was entitled to deal with the application on the papers (RHC O. 53 r. 3(3); Akram Muhammad [2022] HKCA 445 at §§10, 18).

6.  Given the above, an extension of time for the Applicant to advance a hopeless appeal would substantially and needlessly prejudice the respondent.

7.  In the circumstances, I refuse the application and dismiss the Summons.