Pham Thi Hong Duyen and Others v. Torture Claims Appeal Board

HCAL 2437/2025

[2026] HKCFI 5404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2437 OF 2025

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BETWEEN

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D E C I S I O N

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1.On 23 April 2026 I refused to grant leave to the Applicants, a mother and her 2 minor children and all nationals of Vietnam, to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing their appeals regarding their non-refoulement claims upon finding that none of the grounds put forward by them reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in their processes before the Director of Immigration (“Director”) or the Board or in their decisions including having properly and correctly applied the principles in dealing with the claims of the 2^nd and 3^rd Applicants as minor children separately and individually in accordance with the propositions laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53, and that there was no reasonable prospect of success in their intended application.

2.The Applicants now by a summons issued on 5 June 2026 seek leave to appeal against that decision out of time, as the 14-day period for them to file their appeals under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A ended on 7 May 2026, and hence they were some 4 weeks late with their intended appeals. 

3.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicants’ case, a delay of 4 weeks must be considered as substantial and inordinate, for which the 1^st Applicant in her affirmation just referred to some matters which occurred prior to the decision and not relevant to the delay with their intended appeal.  

5.The court record shows that the decision was sent on the same day of 23 April 2026 to their then reported address without being returned through undelivered post, and as such I am unable to see any good or valid reason or justification for their serious delay with their intended appeal.

6.More importantly, nor have they put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may be reasonably arguable that the decision was unfair or unreasonable either in their summons or affirmation.  As such, and in the absence of any error in the decision being clearly and properly identified by the Applicants, I do not see any prospect of success in their intended appeals either.

7.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse to grant leave to the Applicants to appeal out of time, and dismiss their summons.

The Applicants were unrepresented