Ngo Thi Can v. Torture Claims Appeal Board

HCAL 2026/2023

[2025] HKCFI 2130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2026 OF 2023

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BETWEEN

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D E C I S I O N

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1.On 9 January 2025 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding that none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2.The Applicant now by a summons issued on 3 February 2025 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of High Court, Cap. 4A expired on 23 January 2025, and hence she was some 11 days late with her intended appeal.

3.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of 11 days may not be considered as substantial or inordinate, for which she explained in her affirmation that she did not receive the decision in the mail, and was only until she was “reminded” by the Immigration Department that her judicial review application had been refused that she decided to appeal but by then she was already out of time to do so.

5.The court record shows that the decision was sent on the same day of 9 January 2025 to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any reliable evidence to corroborate her bare assertions, and as she also failed to attend the hearing of her summons without any explanation, I am not satisfied that the Applicant has provided a good or valid reason for her delay, but given its relative insignificance, I propose to focus on the prospect of success of her intended appeal.

6.However, the Applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in her summons or in her affirmation, and that as noted above that she also failed to attend the hearing of her summons without any explanation. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in her intended appeal.

7.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.

The Applicant was unrepresented and did not appear