Nguyen Tuan Anh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 842/2021

[2026] HKCFI 5941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 842 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.On 27 February 2026, the court sent an order (“Order”) together with the decision of this court in the prescribed Form “CALL-1” [2026] HKCFI 1028 (“Decision”). These documents were sent to the applicant’s last known address by ordinary post updated by the Immigration Department on 1 December 2025.

2.The court only received the returned post of the Decision and the Order on 4 May 2026.  In the Decision, the court dismissed the applicant’s application for leave to apply for judicial review (“Leave Application”) against the Appeal Board’s decision dated 11 March 2021, dismissing the applicant’s appeal against the decision of the Director of Immigration dated 6 November 2020, rejecting the applicant’s non-refoulement claim.  Pursuant Order 53, rule 3(4) of the Rules of the High Court, the time limit for an appeal to the Court of Appeal is 14 days after an order of the court.  The deadline for the applicant in this case to file his appeal would therefore have been on 13 March 2026.

3.After a delay of about 2 months, the applicant issued a summons (“Summon”) dated 5 May 2026 together with a supporting affirmation to apply for an extension of time to appeal to the Court of Appeal against the Order.

4.At the hearing of the Summons, the applicant appeared in person and made submissions. 

The Law

5.The applicable guidelines governing the discretion for allowing an extension of time to appeal against the 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 prospects 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

6.In the Summons as well as the affirmation, the applicant gave the reason for the delay on account of his imprisonment.  In his affirmation, he said that he could not return to Vietnam because he would still face a lot of problems and danger there.  Regarding his explanation for not receiving the Decision and the Order due to his imprisonment, the applicant informed the court that he was charged and sentenced to imprisonment to some offences or an offence in January this year and was sentenced to imprisonment.  And he said that around 16 February 2026, he completed his prison sentence and was transferred to the Castle Peak Detention Centre (“CIC”).  Around March 2026, through the help of his friend, he became aware of the Decision.

7.In considering the length of delay, I find that a 2 months’ delay is not a short delay.  While it is true that the Order and the Decision were not successfully served on the applicant on his last known address, the applicant nonetheless knew about the Decision around March 2026.

8.As a matter of fact, when the court posted the Order and the Decision on 27 February 2026, the applicant was no longer serving imprisonment sentence, he was in fact in the custody of CIC.  Since a copy of the Decision would have also been sent to the Director of Immigration, I believe that it is also likely that the Immigration Department would have also provided a copy of the Decision and the Order to the applicant while he was in CIC’s custody.

9.In any event, according to the applicant’s own explanation, he has not demonstrated that he acted promptly as soon as he became aware of the Order and the Decision in March 2026 as he did not file the Summons until May 2026.  There was already a delay of around 2 months on his own part.

10.I do not accept his explanation that the delay was caused by the detention or waiting for help from his friend.  I believe help would have been available had he genuinely wanted to appeal the Order.

11.Apart from repeating the same basis of his refoulement claim that he could not return to Vietnam, the applicant has not advanced any proposed grounds to challenge the court’s Decision.  I am therefore not satisfied that there are good prospects of success of the intended appeal.

12.In the circumstances, I refuse to exercise my discretion to extend the time to the applicant to serve his appeal.  The Summons is therefore dismissed.

The applicant appeared in person.