Le Thi Lien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 637/2026 [2026] HKCFI 4967 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 637 of 2026 BETWEEN
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:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 25 March 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 1 December 2026 (the “2026 Notice”). As at the date of filing of her leave application, that date has yet to come. 2.The Applicant had not requested an oral hearing. To resolve the ambiguity in the subject matter of her leave application, a hearing on 10 August 2026 was scheduled for her. Notice of hearing were sent to her by post on 6 July 2026 to her address as stated in her Form 86 and supporting affirmation. The notice of hearing has not been returned in the course of mail. The Applicant had never informed the court of any change of address since filing her Form 86. There is nothing to suggest that she had not received the notice of hearing. Attempts were made on the afternoon of 7 August 2026 to contact her by telephone through the telephone number provided by her, but the calls were not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice. She did not appear at the hearing. Having considered the nature of the application and issues raised, the Notice, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. 3.From the Director’s Notice of Decision dated 1 December 2016 (“2016 Notice”) and other available documents, the background leading to the making of the leave application is as follows. The Applicant sneaked into Hong Kong on 2 April 2015 from Vietnam via Mainland China. She was arrested three days later and made a non-refoulement claim on 14 April 2015. Her claim was rejected by the Director’s 2016 Notice. She appealed to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”). Before her appeal was heard, she was repatriated back to Vietnam on 11 October 2017. As indicated by her Form 8, she somehow re-entered Hong Kong on or before 23 February 2022, presumably illegally. On 25 March 2026, she filed the leave application. 4.The decision sought to be reviewed as stated in her Form 86 is the Director’s decision in his 2026 Notice, which obviously does not and could not have possibly existed at the time of filing of the leave application. In her affirmation filed in support of her leave application, the Applicant annexed two documents, Exhibit A and Exhibit B. Exhibit A is the Director’s 2016 Notice rejecting her application for non-refoulement protection. Exhibit B is a letter dated 14 February 2018 from the Board to the Director confirming that as the Applicant had left Hong Kong on 11 October 2017, her non-refoulement claim is treated as withdrawn pursuant to section 37ZF of the Immigration Ordinance. Hence, the Director’s decision in his 2016 Notice, ie Exhibit A, is now final. From these objective circumstances, it appears to be the Applicant’s intention to seek leave to review the Director’s 2016 Notice since that is the only decision affecting her and in which she is interested. Hence, the Court explored the possibility of saving her leave application by amending the date of the decision sought to be reviewed. 5.However, the Director’s decision in his 2016 Notice is not reviewable by judicial process because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures: Re Moshsin Ali[1]. But her appeal to the Board was treated as having been withdrawn by her returning to Vietnam. Thus, the Director’s decision in his 2016 Decision is now final. In her letter dated 27 March 2026, the Applicant explained that she was misled or forced by an immigration officer into signing the documents for her repatriation by representing to her that she had no further opportunity to appeal. That explanation is hardly credible because she had appealed to the Board and she signed the repatriation documents before the Board had heard her appeal and notified her of the outcome. An immigration officer obviously had no authority to represent the Board. She could not have given any credence to what an immigration officer said. 6.However, it would be futile to pursue this line of inquiry because in any event the leave application was filed badly out of time. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers there is good reason for extending the period within which the application shall be made. 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. Thus, even if the Applicant had been misled by the immigration officer, she could not explain the nine and half year’s delay in taking out the leave application. Even accepting that once repatriated, it would be difficult or inconvenient for her to apply, she had not explained why she did not apply soon after she had re-entered Hong Kong before 23 February 2022. She has offered no explanation for the more than four years’ delay. 7.Furthermore, from the Form 86, it appears that the Applicant deliberately made the leave application in respect of a fictitious decision. Initially, she put down the date of the decision sought to be reviewed as “01/02/2016”. There was no such decision. Then, she deleted it and put down the date as “01/12/2016” which is the date of the 2016 Notice. But then she overwrote the figure “2” on the figure “1” in year 2016. She also annexed a copy of the 2016 Notice in her supporting affirmation. The irresistible inference is that she deliberately made an application in respect of a fictitious decision for some purpose known to herself. And eventually she did not attend the hearing. The leave application is an abuse of process. 8.For all these reasons, the Court did not find it appropriate to exercise its initiative to amend the Form 86 and dismissed the Applicant’s leave application for want of subject matter. Dated the 31st day of August 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 |
Cases cited in this judgment