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HCAL 2660/2024
[2025] HKCFI 4931
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2660 OF 2024
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BETWEEN
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Bui Tien Hoai |
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: |
11 November 2025 |
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DECISION
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The application
1. The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.
2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.
3. He applied to the Court to withdraw his application
4. By Form CALL-1 dated 13 May 2025 (“the Court’s decision”), the Court dismissed his application.
5. The Court’s decision was sent to the applicant on 13 May 2025 at his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision[1].
6. The time for filing the notice of appeal expired on 27 May 2025[2].
7. By summons filed on 18 August 2025, the applicant applied for appeal against the Court’s decision out of time. He is late for more than 2 months.
8. In support of his application, the applicant submitted in his application that he asked for repatriation because he thought he could fix his problems. Now things have gone not as he thought and he wants to withdraw his application to withdraw.
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[3].
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. I shall consider the merits of his case.
11. 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].”
12. The applicant’s application was dismissed on his application for withdrawal of his application for leave for judicial review of the Board’s Decision. The discretion to dismiss his application was made because there was nothing outstanding in his action[4]. The file should not be kept in the Registry indefinitely. Furthermore, the applicant should not be allowed to reinstate his application after a period of time, so that he may stay in Hong Kong illegally indefinitely.
13. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was 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.”
[4] Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:
1. “(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
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