Khuc Thi Mai Trang Acting As Next Friend of Hoang Bui Duc Hieu Simon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1298/2025

[2026] HKCFI 5497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1298 OF 2025

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BETWEEN

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D E C I S I O N

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The application

1.The mother is acting as next friend of her son, who was born on 26 June 2019, in this application.

2.The mother is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (“the Board”). She applied to the Court of First Instance for leave for judicial review of the Board’s Decision. She failed and appealed to the Court of Appeal. The Court of Appeal dismissed her appeal. She had given birth to her son in Hong Kong.

3.Acting on behalf of her son, the mother lodged a non-refoulement with the Director. The Director refused her son’s application. On behalf of the son, the mother appealed to the Board. By Decision dated 7 September 2021 (“the Board’s Decision”), the Board dismissed his appeal.

4.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the mother, acting for the applicant, filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

5.By Form CALL-1 dated 11 March 2026 (“the Court’ decision”), the Court dismissed his application as there was no realistic prospect of success in the intended application. On the same day, the Court’s decision was sent to the applicant’s last known address without being returned by the Post Office. The mother and the applicant were deemed to receive the Court’s decision.[1]

6.Time for the son to file the notice of appeal expired on 25 March 2026[2].

7.In the summon filed on 3 August 2026, the applicant asked for extension of time to file the notice of appeal. He is late for 4 months and 11 days. In her affirmation in support of her son’s application, the mother said that she does not understand English or Chinese, so it is inconvenient for her to file the notice of appeal for her son within the appeal period.

Discussion

8.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

9.The Court will consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

10.I shall consider the merits of the applicant’s case.

11.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

12.The applicant’s claim was based upon the mother’s allegation that if refouled, the mother would be harmed or killed by her creditor because she was unable to repay her loan. The applicant will be harmed or killed as well.

13.The Director rejected his application because his claim was not substantiated. The mother, acting on the applicant’s behalf, appealed to the Board.

14.The Board agreed with the Director that the claim was unsubstantiated and dismissed the appeal.

15.The mother has raised no valid ground to challenge the Board’s finding of the facts or to challenge the Court’s decision.

16.There is no realistic prospect of success in his intended appeal.

17.In the circumstances, I refuse to extend time for the applicant’s appeal. Accordingly, I dismiss his application.

18.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’s application a nullity.

The applicant was unrepresented.