Bah Ebrima v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3618/2019

[2025] HKCFI 4512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3618 OF 2019

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D E C I S I O N

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1.This is the Applicant’s application, by summons (“the Summons”) filed on 30 April 2025, for extension of time to appeal this Court’s order dated 14 April 2025 (“the Decision”) dismissing his application for leave to apply for judicial review of the decision the Torture Claims Appeal Board / Non-refoulement Petition Office dated 31 October 2019, which confirmed the decision of the Director of Immigration dated 21 September 2019 rejecting his non-refoulement claim on all applicable grounds under the USM.

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review 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. The Applicant was therefore late in taking out the Summons. In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the Court will take into account: (i) the length of the delay; (ii) the reasons 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 Jagg Singh and Torture Claims Appeal Board / Non-Refoulement Claims Petition Office CAMP 64/2020 [2020] HKCA 844 at §10).

3.The Applicant acknowledges that he was late. As the party seeking an extension of time, the burden rests squarely on him, and it is incumbent upon him to address and account for the delay. However, he has entirely failed to offer any explanation for the delay. In fact, no justification has been provided whatsoever. While I am prepared to accept that the delay in question is not substantial, that alone does not render it satisfactory.

4.In any event, the Applicant’s main difficulty in this application lies in the lack of merit in his intended appeal. As set out in the Decision, I found that he was unable to demonstrate any errors of law committed by the Board or establish that its decision was procedurally unfair or irrational so as to justify the Court’s intervention by way of judicial review. I had reminded myself of the enhanced standard that should be adopted in such cases, owing to the seriousness of the issues involved. However, the Applicant has neither identified any specific grounds of appeal against the Decision nor provided any explanation as to why it is allegedly “unreasonable”.

5.For present purposes, the absence of merit is, by itself, determinative. As a matter of common sense, where an intended appeal is devoid of merit, granting an extension of time to pursue it serves no practical purpose, as it would inevitably be dismissed. There is no utility in pursuing what is, in essence, a hopeless appeal (see Re MK HCMP 2609/2016, 10 January 2017 at §§7-8; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017 at §8; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017 at §10).

6.Turning to the question of prejudice, granting an extension of time in these circumstances would delay the refoulement process, clearly undermining the proper administration of the Respondent’s functions and causing prejudice in that regard.

7.Accordingly, I refuse to grant the Applicant an extension of time to appeal and dismiss the Summons.

The applicant appeared in person