Doan Thi Nhan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2401/2019

[2026] HKCFI 3223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2401 OF 2019

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BETWEEN

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D E C I S I O N

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Introduction

1.On 5 March 2025, the court sent the order (“Order”) together with the decision (“Decision”) in the prescribed Form “Call-1” ([2025] HKCFI 678) by ordinary post to the applicant’s address updated by the Immigration Department, which was an address at No 194 and 196, Lai Chi Kok Road (“Last Known Address”).

2.In the Decision, the court dismissed the applicant’s application for leave to apply for judicial review (“Leave Application”) against the Appeal Board’s two decisions respectively dated 1 December 2016 and 11 April 2019, dismissing the applicant’s appeals against the Director’s refusal of her non-refoulement claim.

3.According to the court’s record, the Order and the Decision that were posted to the applicant on the Last Known Address were returned on 19 March 2025. Hence, I find as a fact that the applicant did not receive the Order and the Decision.

4.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the time limit for an appeal to the Court of Appeal is 14 days after the order of the court. The deadline for the applicant to file her appeal would have expired on 20 March 2025. When the applicant filed the summons (“Summons”) for an extension of time on 3 March 2026, she was late for about 11 months.

The law

5.At the hearing of the Summons, the applicant appeared in person and made submissions. I would firstly discuss the applicable guidelines. The applicable guidelines governing the discretion of an extension of time to appeal against a decision refusing leave to apply for judicial review are as follows: (i) the length of the delay; (ii) the reason for the delay; (iii) the prospects of success of the intended appeal; and (iv) the prejudice to the respondent if an extension of time is 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 Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

Discussion

6.In the affirmation in support of the Summons, the applicant stated that she did not receive any letter from the court. She did not know that the Leave Application had been refused. Hence, she missed the appeal deadline.

7.At the hearing this morning, the applicant confirmed that the Last Known Address was the correct address. Even though the address she had provided in the Summons is different to the Last Known Address, she said that she still resides at the Last Known Address. The address on the Summons is only for correspondence purpose. She also said that she has been living at the Last Known Address for several years and has not changed her address at all.

8.According to the information shown on the envelope of the returned post, the reason for the non-delivery was stated to be “the information of a block is missing”. The court then asked the applicant whether there was a block name or block number that should be included in the Last Known Address. The applicant confirmed that the Last Known Address was the same as that the address provided in the Form 8 (the recognizance paper). In the circumstances, I find it unusual that the service of the Last Known Address was unsuccessful.

9.I further asked the applicant as to when she in fact received the Decision and the Order before she decided to file the Summons to appeal. She told me that several months ago, she asked a friend to make enquiries and her friend told her the Leave Application was not successful. One particular matter I find it very puzzling is that at that time when she filed the Summons on 3 March 2026, she said she still had not read the Decision notwithstanding that she had been informed by her friend the unsuccessful result of the Leave Application. She confirmed that her friend prepared all the documents for the filing of the Summons.

10.Since the applicant informed the court that she still had not yet read the Decision, the court therefore briefly adjourned the hearing and asked the interpreter to interpret the Decision to her so that she would understand the reasons for the court’s dismissal of the Leave Application.

11.After the hearing resumed, and it was confirmed that the Decision had been interpreted to her, the court then asked the applicant whether she wanted to say anything. She told the court that she understood that she had a right to appeal and she did not want to go back home.

12.When considering the length of delay in the present case, I cannot count the running of time from the time of the service. Rather, the time should have only started to run until the applicant received the Decision and the Order. However, I believe that between the time of the expiry of the deadline for the appeal and the time the applicant filed the Summons, there is likely a delay though the period of delay would not be 11 months. It is important, therefore for the court to determine when the applicant first came to be aware of the Decision and the Order.

13.However, the applicant was very vague as to when she was allegedly told by her friend that the Leave Application had been dismissed. Since she had a friend helping her with the Summons, I find it inconceivable that she had not read the Decision when she decided to file the Summons. I found that between the time she was aware of the Decision and the time she filed the Summons, there have likely been a delay. Hence, I find there is a delay on the part of the applicant to file the Summons from the time when she was first had knowledge of the outcome of the Leave Application.

14.As for the reason of the delay, I am not satisfied that the applicant has provided a good explanation. She has not been able to show that she taken prompt action to file an appeal. Neither has she shown any interest in reading the Decision when she was told that the Leave Application was dismissed. Hence, I do not find her explanation reasonable.

15.In the present case, I find it most disconcerting is the fact that the applicant has sought to appeal against the Order without even having read the Decision or asked somebody to explain the Decision to her before she filed the Summons. When the court asked her why she wanted to appeal since she had not read the Decision, she kept telling the court that she heard from her fellow non-refoulement claimants that a claimant has a right to appeal one more time.

16.In my view, what the applicant said was a clear demonstration of her abuse of the process of the court. I believe that the intended appeal is not an authentic challenge to the Order. The Applicant’s motive is to play for time and try to exhaust every single available venue open to her in order to prolong her stay in Hong Kong.

17.The applicant has not provided any proposed grounds to challenge the Order, whether in her affirmation or at the hearing today, after she had been explained and interpreted the Decision. Hence, I am not satisfied that there is a good prospect of success in the applicant’s intended appeal.

Conclusion

18.Whether to extend time to appeal is the discretion of the court. Having carefully examined the facts and evidence of this case, I am disinclined to exercise my discretion to extend the time to the applicant to serve her appeal.

19.The Summons is dismissed.

The applicant appeared in person