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HCAL 865/2025
[2026] HKCFI 2545
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 865 OF 2025
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BETWEEN
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Hoang Nguyen Phuc Duong |
1st Applicant |
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Hoang Nguyen Nam Khanh |
2nd Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
13 May 2026 |
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D E C I S I O N
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The application
1. The applicants are brothers (“the brothers”). They were the minors of a family in HCAL 1764 of 2018. They were 2 of the applicants in the action, with their parents acting as their next friends.
2. The family members are illegal immigrants by staying in Hong Kong without permission and they jointly lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). The Board dismissed their appeal.
3. They applied for leave for judicial review of the Board’s decision. This Court dismissed their application.
4. They appealed. The Court of Appeal dismissed the parent’s appeal, but allowed the minors’ appeal because the Board failed to have sufficient consideration on the feasibility of internal relocation for them.
5. The minors’ appeal was remitted to the Board to be considered by a differently constituted Board, which held a hearing on 17 October 2023. The minors and the Director were legally represented. By Decision dated 9 May 2024 (“the Board’s Decision”), the Board dismissed their appeal as it found that the parents’ creditor will not be able to trace them if they relocate to live in Hanoi.
6. By Form 86, the brothers applied for leave for judicial review of the Board’s Decision.
7. By Form CALL-1 dated 22 August 2025 (“the Court’s decision”), the Court dismissed their application as there is no realistic prospect of success in their intended application because the Board had discharged its duty in the assessment of the issue of internal relocation and that the brothers had, by then, become adults and the child specific issues will not apply to them.
8. The Court’s decision was sent to the applicants on 22 August 2025 at their last known address without being returned from the Post Office. They are deemed to receive the Court’s decision[1].
9. The time for filing the notice of appeal expired on 5 September 2025[2].
10. By summons filed on 24 March 2026, the applicants applied for appeal against the Court’s decision out of time. They are late for more than 6 months.
11. In their joint affirmation in support of his application, the brothers said that they did not have legal assistance and they were not familiar with the legal proceedings. They had sought legal aid and their application was refused. They had finished their university education in Hong Kong. They wish to be useful citizens in Hong Kong.
Discussion
12. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, I decide to determine this application on paper without an oral hearing[3].
13. The Court will consider the factors as set out in AW v Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of their case.
14. In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:
“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”
15. Those reasons under paragraph 11 are not valid for their delay. More importantly, I consider that their intended appeal does not have any merit.
16. There is no valid reason from the applicant to challenge the Board’s Decision or the Court’s decision.
17. In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their application.
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(K.W. Lung)
Deputy High Court Judge
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The applicants were unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. The applicant had not filed any notice of change of address for service to notify of any changes in his address. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. He was therefore deemed to have received the Court’s decision on 1 April 2022. ”
[2] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court
2. Reckoning periods of time (O. 3, r. 2)
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
(35 of 1998 s. 5; 18 of 2016 s. 5)
[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:
“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”
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