Nguyen Thi Huong and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1849/2019

[2026] HKCFI 3933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1849 OF 2019

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D E C I S I O N

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Summons

1.By summons (“Summons”) dated 4 May 2026, the applicants applied for an extension of time to appeal against the order of a Deputy High Court Judge (“Order”) dated 20 June 2025, dismissing the applicants’ application for leave to apply for judicial review (“Leave Application”).  In the decision in the prescribed Form Call-1 of the same date (“Decision”) ([2025] HKCFI 2659), the Deputy High Court Judge dismissed the Leave Application against the Appeal Board’s decision dated 24 June 2019 in respect of their appeal against the decision of the Director of Immigration dated 8 December 2017 rejecting the applicants’ non-refoulement claim.

2.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (“Rules”), an applicant may appeal to the Court of Appeal against an order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal against the Order expired on 5 July 2025. Hence, the applicants’ intended appeal is late for 10 months.

3.The 1^st applicant is the mother of the 2^nd applicant, her minor daughter born in Hong Kong.  A child claimant should only proceed in accordance with the regime under O 80 r 2 of the Rules with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57].

4.At the hearing, the 1^st applicant attended in person for herself and on behalf of the 2^nd applicant. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non‑compliance with the rule as a mere irregularity, and proceed with the hearing: see Fabio (supra).  Despite having regarded the non-compliance as a mere irregularity, I am of the view that the title of the application ought to be amended to read as follows:

“To Thi Kieu Diem, suing by her mother and next friend, Nguyen Thi Huong”

5.All the previous filings shall be deemed to have so amended.

The Law

6.The applicable guidelines governing the discretion for deciding whether to allow an extension of time to appeal against a decision refusing leave to apply for judicial review are as follows.  The court shall have regard to: (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of success of the intended appeal; and (iv) the prejudice to the respondent if an 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 Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

Discussion

7.In the affirmation in support of the Summons, the 1^st applicant only stated that she did not speak English or Chinese.  She had to get help from her friends to help her submit the appeal.  Hence, it was “inconvenient” for her to file the appeal in the appeal period.

8.At the hearing, the 1^st applicant however gave a very different explanation.  She stated that she did not receive any mails from the court.  She was also vague as to whether or when she had received the Decision and the Order.  At the end, she stated that she had not read the Decision when the Summons was filed.  She only went to seek her friends’ help after an immigration officer told her that the Leave Application had been refused when she reported to the officer.  She was asked if she wanted to go back to Vietnam.  As she wanted to remain in Hong Kong longer, she therefore decided to appeal and filed the Summons.

9.I do not accept the 1^st applicant’s purported reason for the delay.  At the hearing of the Leave Application on 1 April 2025, both applicants were absent.  The court, after having been satisfied that the notices of hearing had not been returned undelivered, proceeded to determine the Leave Application on paper.    

10.At the hearing, this court noted the notices of hearing for the hearing on the 1 April 2025 were sent to the applicants to different addresses, which addresses were updated by the Immigration Department on 24 July 2024.  For the 1^st applicant, the Immigration Department provided 2 addresses.  Address (1) is a flat numbered Room 1, Flat H in Tuen Mun.  Address 2 is an address of a flat in Yuen Long.  Oddly, the 2^nd applicant’s address was different, it was neither Address (1) nor Address 2.  Instead, the 2^nd applicant’s address was stated as Flat H in 3 Tsing Ling Path, Tuen Mun (“2^nd applicant’s Last Known Address”).  When a court’s letter dated 7 August 2024 posted to the 1^st applicant at Address (1) was returned undelivered, the notice of hearing to the 1^st applicant was then only sent to Address 2 (i.e. the Yuen Long address). Accordingly, the Order and the Decision were also posted to the 1^st applicant and the 2^nd applicant respectively at Address (2) and the 2^nd applicant’s Last Known Address.

11.When the court asked the 1^st applicant to explain the above oddities, she stated that she and the 2^nd applicant had previously lived in Yuen Long.  However, they had moved and have lived in the address stated on the Summons for about 6 years, which is believed to be the Address (2) in Tuen Mun despite the slight difference.  She also stated that she never lived apart from the 2^nd applicant, and always shared the same address.  However, the 1^st applicant also stated that she had moved many times and lived at different addresses.

12.In light of the confusion, I asked for copies of the applicants’ Form 8, the Recognizance papers.  The Chinese address appeared in the 1^st applicant’s Form 8 was an address in Tuen Mun, but it is neither Address (2) or the 2^nd applicant’s Last Known Address.  On the other hand, the address on the 2^nd applicant’s Form 8 was the same address as the 2^nd applicant’s Last Known Address.

13.Since the Order and the Decision posted to both applicants had not been returned undelivered up till now, I therefore reject the 1^st applicant purported explanation that she never received the court’s documents.  Even if she might have moved out from Address (2) in Yuen Long as she alleged, she would have received the court documents at the 2^nd applicant’s Last Known Address as she had always lived with the 2^nd applicant.  To conclude, I am not satisfied that the 1^st applicant had provided good reason for the delay.

14.Regarding the prospects of success, the applicants have not provided any proposed grounds of appeal either in the supporting affirmation or at the hearing.  As discussed in [8] above, the 1^st applicant had not read the Decision even on the date of the hearing, and her only purpose for her intended appeal is to buy for time.  I do not find the intended appeal is genuine.

15.Having regard to the lengthy delay, the absence of good reason and a complete lack of any prospects of success in the present intended appeal, I therefore refuse to exercise my discretion to grant an extension of time to the 1^st  applicant to serve her appeal out of time.

16.The 2^nd applicant, being a minor, should be separately dealt with.

17.The following general propositions apply to the determination of a minor's non-refoulement claim by a decision-maker: Re Jasvir Singh^[1] following Fabio (supra.).

“[30] First. …(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children's claims could be dismissed without further consideration of their personal situations;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

[31] Second, when dealing with a non-represented minor's judicial review leave application seeking to challenge the Board's rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor's own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

[32]. If the court finds that it is reasonably arguable that the Board had not considered the minor's non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor's claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials , with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor's non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

[33]. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor's claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non‑refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor's intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 , discussed in [57] of Fabio Arlyn Timogan.”

18.In [29] to [32] of the Decision, the Deputy High Court Judge had alluded to the need for a separation consideration in respect the minor 2^nd applicant.  The Deputy Judge stated that since the findings made by the Appeal Board applied to both applicants and he could not find any underlying minor-specific non-refoulement grounds which the Appeal Board had not considered, he was satisfied that the Appeal Board had not overlooked any minor-specific non-refoulement grounds concerning the 2^nd applicant.

19.In the Appeal Board’s decision, the only specific reference to the 2^nd applicant was stated in [87] concerning the reasonably viability of internal relocation.  However, it appears that the Appeal Board assessed the reasonableness largely from the 1^st applicant’s perspective when it stated that it “was not suggested that she would not be able to reestablish herself with Ms Do [i.e. the 2^nd applicant] in their home state or elsewhere in Vietnam”.  In the circumstances, despite a reference to the 2^nd applicant, the Appeal Board did not separately assess the issue of internal relocation concerning the 2^nd applicant.  Apart from this specific reference, the Appeal Board seemed to have considered the 2^nd applicant’s risks as “one composite claim without giving separate consideration to the personal circumstances of each claimant separately” as required by the Court of Appeal.

20.In the circumstances, although the 1^st applicant had not provided any proposed grounds, this court considers that the above discussion shows that the 2^nd applicant’s intended appeal has a good prospect of success.

21.Notwithstanding this court’s rejection of the 1^st applicant’s reason for the delay, I believe that the court’s discretion in relation to the 2^nd applicant should be guided by merits: see H v Director of Immigration ^[2] and Re Siti Naisah^[3].

22.In the circumstances, I am of the view that this court should exercise its discretion to allow an extension of time to the 2^nd applicant.

23.In view of her allegations stated in the supporting affirmation, I have arranged the handing down of this decision on 16 July 2026, on which a Vietnamese interpreter will be present to interpret this decision to the 1^st applicant.

Order

24.The title of the 2^nd applicant be amended as “To Thi Kieu Diem, suing by her mother and next friend, Nguyen Thi Huong”.

25.The 1^st applicant: the Summons is dismissed.

26.The 2^nd applicant: There shall be an extension of time to the 2^nd applicant to file her appeal out of time.  The notice of appeal shall be filed within 14 days of the notice of the date of the handing down of this decision, i.e. on or before 30 July 2026.

27.Since the 2^nd applicant is a minor, she should be legally represented.  Hence, I direct my clerk to send a copy of this decision to the Official Solicitor as well as to the Director of Legal Aid for their necessary action.

The 1^st applicant and the 2^nd applicant appeared in person