Leal Cristian Baduyen v. Torture Claims Appeal Board

HCAL 1576/2020

[2026] HKCFI 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1576 OF 2020

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D E C I S I O N

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1.On 1 September 2025 I refused to grant leave to the Applicant 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 none of the grounds put forward by him 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 28 October 2025 seeks leave to appeal against that decision out of time, 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 15 September 2025, and hence he was some 40 days 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 some 40 days must be considered as substantial and inordinate, for which he explained at the hearing of his summons that he only received the decision around 20 October 2025 or shortly thereafter, as it was on 22 September 2025 that he moved to his present address, of which he did immediately inform the Immigration Department, and after he received the decision in the mail, he immediately tried to file his appeal, but was told by the Registry that he was by then already out of time to do so.

5.The court record shows that the decision was first sent on the same day of 1 September 2025 to the Applicant’s then reported address but was returned through undelivered post, and upon subsequent enquiry with the Immigration Department for the latest address of the Applicant, the decision was re-sent on 20 October 2025 to his current new address, and hence when shortly after he received the decision in the mail and tried to file his appeal but was told by the Registry that he was out of time to do so and that he would have to apply for extension of time for his appeal, which he did on 28 October 2025 when he issued his present application, he was in fact not out of time with his intended appeal, as the 14 days within which he received the decision had then not yet expired.

6.In the premises, and accordingly I extend time for the Applicant to file his appeal within 14 days of this decision.

The Applicant appeared in person.