Okwuigbo Maduegbunam Kennedy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 279/2021

[2025] HKCFI 6445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 279 OF 2021

________________

________________

________________________

D E C I S I O N

________________________

Introduction

1.On 15 May 2025, the applicant who had filed an application for leave to apply for judicial review, (“Leave Application”) applied by summons to withdraw the Leave Application.  In the affirmation in support of the application for the withdrawal of the Leave Application, the applicant states:  

“I want to close my case both with Director of Immigration Department and Torture Claims Appeal Board since I have settled my fear to return to my country, therefore I want to go back to my country.”

2.After the court received the application for withdrawal of the Leave Application, this court on 12 September 2025, delivered its decision.  In the decision, the court considered the applicant’s withdrawal application as well as examined the merits of his application for the Leave Application.  The court accepted his application for withdrawal and further found that the applicant’s application for the Leave Application has no merits.  In the circumstances, the court dismissed his entire Leave Application. 

3.This decision, together with the order dismissing the Leave Application, were posted to the applicant on 12 September 2025 at his updated address, which was Room 1, Flat G, 4 Floor, Fuk On House, 65‑79 Yuen Long On Ning Street. Up to today, that decision, as well as the order which were posted to that address, I referred to, the post had not been returned.  In the circumstances, I accept that the posting of the court’s documents was regular and I believe that the applicant would have received the decision and the order within the ordinary time of posting. 

4.On 15 October 2025, the applicant filed a summons to apply for leave to appeal against that order and the decision that I made on 12 September 2025 out of time.  In the affirmation, the applicant affirmed that he received the letter late. 

5.Pursuant to 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 the order of the court.  In the present case, the deadline for the applicant to file his appeal would have been 26 September 2025.  So this application was made after a delay for about three weeks. 

The Law

6.The guidelines governing the discretion for an extension of time to appeal against the decision refusing leave to apply for judicial review therefore apply.  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.   

7.At the hearing of the summons, the applicant appeared in person.  In view of the earlier withdrawal application the applicant had made, I showed the applicant his affirmation applying for the withdrawal of the Leave Application. I asked the applicant whether he understood his summons for applying for an extension of time to appeal. 

8.The reason why I did that, because I felt a little bit puzzled as to the reason why the applicant would take out this present application in view of his earlier application for withdrawal. The applicant gave me very confusing responses.  He told me that he was confused and he actually wanted to go back home.  However, he said because there were still a lot of problems at home and a lot of crisis at home, he had “double mind”.  

9.I then wanted to clarify from the applicant as to whether he was applying for the withdrawal of his earlier withdrawal application because that application had been accepted by the court. The applicant then told the court now he wanted to go home and he no longer wanted to make any application.  

10.In view of the applicant’s shifting responses and confusing stance, I therefore decided to ask the applicant to confirm his decision under oath.  Under oath, the applicant affirmed that he really wanted to go home.  He was very clear about that. He was very confused before.  He also confirmed with me that he understood the consequences of his withdrawal of the present summons in that the court’s decision dated 12 September 2025 continues to stand.  

11.In my view, even if the applicant has not withdrawn the present summons, I am of the firm view that this present application has no merits.  The applicant has given no good reason for the delay.  A delay of three weeks cannot be described as short.  Further, he has not dealt with his earlier application for withdrawal of this Leave Application, which remains binding on him. 

12.Additionally, the court, when examining the merits of his Leave Application, had given reasons as to why the court had decided to dismiss the Leave Application.  In the summons, the applicant had not provided any proposed grounds of his intended appeal against the decision dated 12 September 2025.  

13.For the reasons stated above, I order the dismissal of the summons. 

The applicant appeared in person