Doan Thi Ha and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1030/2019

[2025] HKCFI 3244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1030 OF 2019

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D E C I S I O N

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Introduction

1.This is the Applicants’ application by summons filed on 11 July 2025 for extension of time to appeal the order of this Court dated 11 September 2023 (the “Order”) refusing to grant them leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”).  The application is supported by the affirmation of the 1^st Applicant who is the mother of the other three applicants and represented them in the leave application.  

The Law

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

Length of delay and explanations for the delay

3.The application for extension of time to appeal was filed more than one year and ten months after the date of the Order sought to be challenged.  The Applicants are one year, nine months and twenty-five days out of time.  The delay is very substantial.  The 1^st Applicant’s explanation for the delay is that when the Order was issued, she was serving her sentence in Lo Wu Correctional Institution and did not know that their leave application had been refused.  After serving her sentence, she was detained again Nei Kwu Correctional Institution.  After she was released, she did not know how to appeal until he had the assistance of her friends.  There are gaps in her evidence as to when she was informed of the outcome of her leave application, when she moved from one correctional institution to another and when she was ultimately released.  Assuming for her greatest benefit that she only learned about the outcome of the leave application after her ultimate release from Nei Kwu Correctional Institution and for reason which will become obvious in the next following two paragraphs, such information has no significance.  Hence, no such enquiries were made.

4.The Applicants filed her Form 86 on 16 April 2019 giving an address in Lai Chi Kok Road as their contact address.  They never informed the Court of any change of their address.  On 22 March 2022, the Court gave them directions for the further conduct of their leave application by letter sent to them by post at their Lai Chi Kok Road address.  They did not respond.  Out of abundance of caution, before processing their leave application in December 2022, the Court enquired from the Immigration Department about their up-to-date address.  The Immigration Department advised that the 1^st Applicant resided at an address in Wong Chuk Street, while the other three resided in the Lai Chi Kok Road address.  On 11 September 2023, the Court issued the Order and Form CALL-1 to them by post to both the Lai Chi Kok Road address and the Wong Chuk Street address.  Understandably, the 1^st Applicant did not receive the documents as she was in custody.  There is nothing to suggest that the other three Applicants did not.  They are minors born in 2017 and were six and half years old at the time of issue of the Order.  However, they must be living under the care of some adult who would have informed the 1^st Applicant of the receipt of the Order and Form CALL-1.  Again, assuming for the benefit of the Applicants that the 1^st Applicant had not been so informed, the question remains whether the 1^st Applicant and the other three Applicants whom she represents should be released of their duty and liability for the 1^st Applicant’s failure in informing the Court of her change of address. 

5.As was held by the Court of Appeal in Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], it is the applicant’s obligation to keep the court informed of his means of contact.  If he does not, he has to bear the consequence which his failure brings.  The 1^st Applicant sought to rely on her detention as a ground for being released of the consequence of her delay, but she had never informed the Court of her change of address not only from Lai Chi Kok Road to Wong Chuk Street, but more importantly, also from Wong Chuk Street to the two different Correctional Institutions.  This very inordinate delay was occasioned by her failure to update the Court of her address.  She has to bear the consequence which her failure brings.  She and the other three Applicants have no reasonable explanation for the delay.  Such delay is very substantial.

Prospect of success of the intended appeal

6.The reasons for refusing the Applicants’ leave application are summarised in paragraphs 20 to 22 of the Form CALL-1. Basically, the Board found the 1^st Applicant incredible and rejected her evidence.  It found she had failed to prove the factual basis in support of her claim.  This finding is applicable to the claim of the 2^nd to 4^th Applicants as their claim is hinged on the 1^st Applicant’s.  The Board also considered the 2^nd to 4^th Applicants’ child specific claim based on discrimination and the 2^nd and 3^rd Applicants’ claim based on their medical issues separately from the 1^st Applicant’s.  The Board rejected their claim due to lack of evidential support and on the basis of country of origin information.  These are finding of facts by the Board.  Applying the law applicable to non-refoulement protection, the Board found all the four Applicants are not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism.  Insofar as these are finding of fact, they are solely within the realm of the Board which the court in a judicial review may not intervene.  Insofar as they are finding of the law, they are absolutely correct. 

7.The Applicants have not advanced any grounds of their intended appeal.  They did not state what is wrong with the Board’s or this Court’s decision.  On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Conclusion

8.The delay is very substantial, the intended appeal has no prospect of success.  As such, there is no need to consider prejudice to the respondent if an extension of time were granted.  It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail.  For all these reasons, the application for extension of time to appeal is refused.