Kompipak Wudtikai v. Torture Claims Appeal Board

HCAL 1188/2023

[2025] HKCFI 1617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1188 OF 2023

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BETWEEN

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D E C I S I O N

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1.On 14 December 2023 I refused to extend time to the Applicant’s seriously late application for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that there was no good reason for his extremely serious delay of more than 1 year and 10 months with his application, that none of the grounds put forward by him was reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 24 January 2025 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 28 December 2023, and hence he was more than 1 year late with his intended appeal.

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 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 Applicant’s case, a delay of more than 1 year must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that he was arrested by police in February 2023 for assault and was subsequently convicted and sent to prison for 3 months, and that upon his discharge from prison in May 2023, he was then detained at Tai Tam Gap Correctional Institution by the Immigration Department until September 2024 when he was released on recognizance that he then returned to reside in his sister’s address at Ma Tau Wai Estate which is the same address stated in his present application, and hence he never received the Court’s decision sent in December 2023 when he was then under detention at Tai Tam Gap, and that it was only after his release in September 2024 when he later on one occasion reported on his recognizance that he was informed by his immigration officer of the decision, but by then he was already seriously out of time with his intended appeal.

5.After the hearing of his application, the Applicant further submitted various documents in support of his assertions of arrest and imprisonment for assault, and his subsequent detention at Tai Tam Gap Correctional Institution as on 17 August 2023.

6.The court record shows that the decision was sent on the same day of 14 December 2023 to the Applicant’s last reported address which is the same address as stated in his present application, which he confirmed to be his sister’s address at Ma Tau Wai Estate, without being returned through undelivered post, and subsequent confirmation by the Immigration Department by a letter dated 9 April 2025 that the Applicant was in fact earlier on 5 September 2023 already released from detention by the Immigration Department on recognizance, and whereupon he returned to reside at his sister’s address at Ma Tau Wai Estate as confirmed by him at the hearing. Henceforth, the Applicant’s claim at the hearing of being released from detention only in September 2024 is clearly incorrect, and as such I am satisfied that he would have received the decision sent to his sister’s address on 14 December 2023, and therefore unable to see any good or valid reason or justification for his such serious delay with his intended appeal.

7.More importantly, the Applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation, nor was he able to do so at the hearing of his summons. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

8.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 his application for extension of time to appeal, and dismiss his summons.

The Applicant appeared in person