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

HCAL 448/2022

[2026] HKCFI 2261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 448 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge To:

1.   Extension of time to file the Form 86 is refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicants’ application by Form 86 filed on 9 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 13 September 2018 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 September 2016 (the “Notice”) and Notice of Further Decision dated 3 November 2017 (the “Further Notice”), refusing her application for non‑refoulement protection. 

2.The Applicant had requested an oral hearing and an oral hearing on 23 February 2026 was scheduled for her.  The notice of hearing was sent to her by post to her address as stated in her Form 86 and to her address discovered from the Immigration Department on 6 February 2026.  Neither of the notices has been returned through the post.  There is nothing to suggest that she had not received the notice or had moved.  On the morning of 20 February 2026 and again on the morning of the hearing, a court staff attempted to call her on her telephone as obtained from the Immigration Department.  The calls were not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and the Court had done its best in bringing the hearing to her notice.  However, she did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.

No explanation for the late application

3.The Court noted that her Form 86 was filed 44 months and 26 days 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, it was not promptly made.  Usually, an application made three months after the date of the decision sought to be reviewed is deemed not to have been made promptly.  Extension of time to file the Form 86 is required.  Despite clear warning in the Form 86 that an applicant is required to state her grounds for application and reasons for delay, if any, the Applicant offered no explanation in the Form 86 or her supporting affirmation.  The Applicant did not attend the hearing and forwent her last opportunity to explain her substantial delay.  In the circumstances, the Court finds that she has no explanation for the substantial delay in making the leave application.

4.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 with 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 very 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. 

5.As the Applicant has no explanation for the very inordinate delay, the Court could have no factual basis on which to exercise its discretion to grant her extension of time to file the leave application.  On the other hand, a person in genuine fear for her safety if refouled would have wasted no time to apply as this is her last opportunity to challenge the Board’s decision.  The Applicant’s unexplained delay not only evinced a lack of intention to prosecute her leave application, but also reflects an underlying lack of merits in her leave application and her non‑refoulement claim.  Her conduct resulted in delay in her refoulement process.  The delay is so inordinate as to be beyond the limit which any court could indulge.  Her conduct is a clear abuse of legal process.  Having examined the Decision with anxious scrutiny, this Court cannot detect any errors of law, procedural unfairness or irrationality in the Decision which would make it unfair not to grant her extension of time to file the leave application.  Thus, extension of time to file the leave application is refused under the principle in Po Fun Chan v Winnie Cheung without considering the merits of her leave application. 

Conclusion

6.For the above reasons, extension of time to file the leave application and the leave application are refused.

Dated the 22^nd day of April 2026

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