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HCAL 1466/2021
[2026] HKCFI 3542
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1466 OF 2021
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BETWEEN
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Nguyen Thi Thuong |
1st Applicant |
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Nguyen Vy Chi |
2nd Applicant |
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and |
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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 Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
8 July 2026 |
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D E C I S I O N
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The application
1. The applicants are mother (“the mother”) and daughter (“the daughter”). This is their joint application. The mother is acting as the next friend of the daughter.
2. The mother is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application. She had given birth to the daughter and lodged a non-refoulement claim for her as well. The Director refused her claim. The mother and the daughter separately appealed to the Board. The Board dismissed their appeals by the Board’s Decisions respectively dated 2 September 2021 for the mother and 28 March 2023 for the daughter (“the Board’s Decisions”).
3. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants respectively filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decisions. The Court ordered their applications to be heard together.
4. By Form CALL-1 dated 29 April 2026 (“the Court’ decision”), the Court dismissed their applications as there was no realistic prospect of success in their intended applications.
5. The Court’s decision was sent to the applicants’ last known address on 29 April 2026 without being returned by the Post Office. They were deemed to receive the Court’s decision.[1]
6. The deadline for them to file their notice of appeal is 13 May 2026.
7. In her summon filed on 14 May 2026, the mother asked for extension of time to file the notice of appeal. In her affirmation in support of their application, she said that she was late, but she did not give any explanation for her delay.
8. Their application for extension of time to appeal is late for 1 day only.
Discussion
9. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].
10. 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.
11. I shall consider the merits of their cases.
12. 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].”
13. The applicants’ claim was based upon the mother’s allegation that if refouled, she will be harmed or killed by her creditor because she was unable to repay her loan.
14. The Director rejected their respective applications because their claims were not substantiated. They appealed to the Board.
15. The Board agreed with the Director that their claims were unsubstantiated.
16. The Board had separately considered the child-specific issues for the daughter. The Court had fixed a hearing on 13 April 2026 for them to appear before it. However, they were absent at the hearing.
17. The applicants have raised no valid ground to challenge the Board’s finding of the facts or to challenge the Judgment.
18. There is no realistic prospect of success in their intended appeal.
19. In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their joint application.
20. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicants were unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. … 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. …”
[2] 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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