Le Thi Huyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2110/2020

[2025] HKCFI 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2110 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 22 October 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 February 2018 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 27 February 2017 dismissing her application for non-refoulement protection.

2.The leave application was filed about two years and eight months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made two years and five months out of time. Extension of time to file the leave application is required.

3.In AW and Director of Immigration and William Lam[1], 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 grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant 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[2], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

4.Despite clear indication in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither. On 10 February 2025, the Court gave him directions to file an affirmation or statement explaining why it took him about two years and eight months to make the application and his ground of appeal. The directions had been sent to him by letter address to his last known address discovered from the Immigration Department on 4 February 2025 (the “directions letter”). He did not respond. The letter was not returned through the course of mail. There is nothing to suggest that he had moved or had not received the direction letter. The directions letter was sent to that address because the address he gave on his Form 86 was the addressed of an immigration facility in which he was then detained and he had since moved but had not notified the Court of his change of address. In the circumstances, this Court is satisfied that the directions letter had been properly served on him.

5.The Applicant had given no explanation for the very substantial delay. His conduct evinced a lack of intention to prosecute his leave application. It resulted in delay in the processing of his leave application and his non-refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. His conduct is a clear abuse of legal process. For these reasons, there is no need to consider the merits of his leave application. Extension of time to file the leave application is refused. His leave application is dismissed for want of prosecution.

Dated the 11^th day of March 2025

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