Duong Thi Luong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 421/2021

[2026] HKCFI 4628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 421 OF 2021

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BETWEEN

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D E C I S I O N

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Introduction

1.The Applicant is a Vietnamese. She admitted to having entered into Hong Kong illegally on 17 May 2015. According to the record of the Immigration Department, the Applicant surrendered herself to the Immigration Department on 9 June 2015. She lodged the non-refoulement claim on 15 June 2015.

2.On 28 February 2017, the Director of Immigration refused the Applicant’s non-refoulement claim. The Applicant’s subsequent appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) was dismissed on 20 February 2018 (the “Board’s Decision”).

3.By Form 86 filed on 23 March 2021, the Applicant applied for leave to apply for judicial review against the Board’s Decision (the “Leave Application”). The Leave Application was filed substantially out of time. The hearing of the Leave Application took place on 12 January 2026 and the Applicant attended in person. At the hearing, when being asked about the delay in filing the Leave Application, the Applicant said she was imprisoned in 2018 and 2019 for illegally working in Hong Kong. The Applicant said she had nothing to say in respect of the Leave Application.

4.By the decision dated 4 February 2026 ([2026] HKCFI 584) (the “Court’s Decision”), this Court dismissed the Leave Application on the ground that the Leave Application was filed substantially out of time and without any valid explanation for the delay, and more importantly the Applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success.

5.By the Summons filed on 12 May 2026, the Applicant applied for extension of time to appeal against the Court’s Decision, as the 14-day period for her to file the appeal under Order 53 rule 3(4) of the Rules of the High Court had expired (the “Application”).

6.The Application was heard on 27 July 2026 and the Applicant attended in person. At the hearing, when being asked about the delay in making the Application, the Applicant said she does not understand English and Chinese, and so she needed to find someone to help in making the Application. She claimed that in order to obtain help, she had to find money. When being asked when she received the Court’s Decision, the Applicant said the “decision letter” was lost, and she could not recall the date. She said she had changed address but she could not remember the date she moved.

7.In respect of the Application, the Applicant simply said that she wanted to stay here in Hong Kong. Apart from that, she indicated that she had nothing to say in respect of the Application.

Discussion

8.In considering whether to extend the time to appeal, it is trite that the court will take into account: (1) the length of the delay; (2) the reason(s) for the delay; (3) the prospect of the intended appeal; and (4) the degree of prejudice to the other party if an extension of time is granted. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued. (see Re Mushtaq Imran Ali [2025] HKCA 705, at §§16-17)

9.In the present case, there was delay of about 3 months. The delay was substantial. The Court’s Decision was duly sent to the address provided by the Applicant to the Court. I note that the Applicant did not contend that she had not duly received the Court’s Decision. In the supporting Affirmation, the Applicant explained the delay by saying that she does not speak English or Chinese, and so she had to seek help from her friends in filing the Leave Application. She said it was inconvenient for her to file the appeal in the appeal period. The explanation is largely consistent with what the Applicant had said at the hearing on 27 July 2026. However, I do not consider that to be a valid justification for the delay. I further note that this is not the first time the Applicant was in delay in filing a court application. As noted in the Court’s Decision, the previous Leave Application was also filed substantially out of time.

10.Despite the lack of satisfactory explanation for the delay, I shall still proceed to consider the merit of the intended appeal before deciding on the Application.

11.In the Summons and in the supporting Affirmation, the Applicant did not provide any grounds in support of the intended appeal. Despite being given a further opportunity to make submissions in respect of the Application at the hearing on 27 July 2026, all the Applicant had said was that she wanted to stay here in Hong Kong.

12.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

13.I have considered the Court’s Decision together with the Board’s Decision in detail. The Board had considered and provided adequate and valid reasons in dismissing the Applicant’s case. The Applicant did not provide any valid grounds in support of the Leave Application. The Court had reviewed the Board’s Decision, and came to the decision that there is no realistic prospect of success in the intended challenge to the Board’s Decision (§§13-14 thereof). The Court also found that there was no valid explanation for the substantial delay (§10 of the Court’s Decision). I do not see any errors of law, procedural unfairness or irrationality in the Court’s Decision. Neither has the Applicant made any such allegations. It is incumbent upon the Applicant to demonstrate with sufficient particulars that the Court had erred in the Court’s Decision. The Applicant has plainly failed to do so. Accordingly, I fail to see any prospect of success in the intended appeal.

Conclusion

14.As there is no satisfactory explanation for the delay, and more importantly no prospect of success in the intended appeal, I refuse to extend the time for the appeal. The Application is hereby dismissed.

The applicant was unrepresented and appeared in person