Sadeque Mohammad v. Torture Claims Appeal Board

HCAL 338/2020

[2025] HKCFI 4382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 338 OF 2020

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D E C I S I O N

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Background

1.By way of summons dated and filed on 28 July 2025 (“the Summons”), the applicant applies for leave to appeal out of time against my order dated 2 July 2025.

2.Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

3.In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4.As my order was made on 2 July 2025, the last day for the applicant to file an appeal was on 16 July 2025.  The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

5.In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted (see Jagg Singh v Torture Claims Appeal Board and another [2020] HKCA 844).

6.However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike [2019] HKCA 702).

Discussion

7.In the Summons and the applicant’s supporting affirmation dated 28 July 2025, the applicant alleged that he did not receive my order or decision and hence he had no idea about my decision.  When his friend helped him to check his case and gave him the information, it was already out of time to appeal.

8.However, at the hearing of the Summons on 10 September 2025, the applicant said that he had moved out from his address many years ago but his friend still stayed there and received the court’s letter.  When his friend passed the letter to him, he filed the Summons on the next day to apply for extension of time.  Since the Summons was filed on 28 July 2025, it means that the applicant received the court’s letter from his friend on 27 July 2025.

9.Thus, the applicant gave two versions in explaining why he was late in making the application.  One is that he had never received the court’s order or decision.  The other is that he had moved out from his old address and his friend gave him the court’s letter late.

10.I do not find either of the two explanations satisfactory, but in any event, as aforesaid, the crucial question is whether there is a reasonable prospect of success in the intended judicial review.  In this regard, I find no merits of the intended appeal or the intended judicial review at all.

11.It is not necessary for me to repeat the details of the applicant’s case here as the same were set out in the Board’s decision dated 5 March 2020, which can be viewed in the hyperlinks attached to the Form CALL-1 dated 2 July 2025.

12.The applicant failed to advance any ground for the intended appeal in the Summons or his supporting affirmation.  At the hearing of the Summons on 10 September 2025, when I asked the applicant for his grounds of appeal, the applicant merely reiterated some of the background facts of his case and that it was not safe for him to return to India.  However, he also said that he would go back to India sometime next year when his friend would be going back.

13.For this application to be successful, the applicant must demonstrate that this court had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

14.The applicant failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal or the intended judicial review.

15.Furthermore, as discussed in the Form CALL-1, the Board did consider the merits of the applicant’s case and found that the factual basis of his case did not disclose any special circumstances to allow the late filing of his Notice of Appeal/Petition.  The Board was entitled to make that decision.  This court found no errors of law, procedural unfairness or irrationality in the Board’s decision.

16.In the circumstances, there is no reasonable prospect of success in the intended judicial review and I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

17.For reasons aforesaid, the Summons is dismissed.