Nguyen Xuan Huu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 2533/2024 [2025] HKCFI 3829 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2533 OF 2024 _____________
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______________ D E C I S I O N ______________ 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”). He was late in filing the notice of appeal with the Board. The deadline for the applicant to file the notice of appeal was 29 October 2021, but he filed the notice of appeal on 12 July 2024. 2.Having considered his explanation, which the Board rejected, the Board, by its Decision (“the Board’s Decision”), refused to extend time for him to file the notice of appeal, in effect, dismissed his appeal. 3.The applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision. 4.By Judgment dated 1 April 2025 (“the Judgment”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. 5.The Judgment was sent to the applicant on 1 April 2025 at his last known address without being returned from the Post Office. He is deemed to receive the Judgment[1]. 6.The time for filing the notice of appeal expired on 15 April 2025[2]. 7.By summons filed on 12 June 2025, the applicant applied for extension of time to file the notice of appeal against the Court’s decision. He is late for more than 7 weeks. 8.In his affirmation in support of his application, the applicant said that the Judgment was unfair because he was not given the chance to clarify the situation in his country. 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:
12.The applicant claimed that if refouled, he will be harmed or killed by the creditor because he was unable to repay the loan he had borrowed. 13.The Director rejected his claim because it was not substantiated. He appealed to the Board. However, he was late in filing the notice of appeal with the Board. The Board had taken into consideration that he was being detained during the relevant period. The Board was not satisfied that he had provided evidence to show that he had exercised due diligence to file the notice of appeal, but was unable to do so due to circumstances beyond his control. Therefore, the Board refused to exercise its discretion to allow him to file his notice of appeal out of time. 14.He filed Form 86 for leave for judicial review of the Board’s Decision. 15.This Court agreed with the Board’s decision and refused to grant leave for the applicant to apply for judicial review of the Board’s Decision. 16.The applicant has not given any reasons for his delay in filing the notice of appeal for appeal to the Court of Appeal. 17.As to the reason under paragraph 8, the applicant did not request a hearing for his application for leave for judicial review of the Board’s Decision. Under Order 53, rule 3(3) of the RHC, the Court may determine the ex parte application without a hearing. 18.The applicant has not raised any valid reason to challenge the Board’s Decision or the Judgment. 19.In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.
The applicant was unrepresented. [1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
[2] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court
(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:
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Cases cited in this judgment
Anam Khoirul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Bahrudin Muhamad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Priyono Sugeng v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Hasan Md Mehedi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Pham Van Cuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Fadil Muchamad Hairul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Fitri Handayani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Mubarok Abdul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Asavasupakul Napatsit v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Syed Faisal Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Hoang Van Do v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Sasidharan Rajesh Kumar and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Luu Dinh Cong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Akhtar Musammat Sajna Acting As the Next Friend of Akhtar Musammat Fatima Haque Ishrath v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Makhrufah Assodikoh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Seewiboon Kunthida v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Nguyen Bui Hien and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Hussain Javed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Pham Van Binh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Kirtania Sumon Chandra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Further hearings and rulings under HCAL 2533/2024