Akter Mst Baby v. Torture Claims Appeal Board

HCAL 996/2021

[2026] HKCFI 3862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 996 OF 2021

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D E C I S I O N

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Background

1.By way of summons filed on 26 May 2026 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 6 May 2026, which dismissed the applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 19 December 2019.

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 6 May 2026, the last day for the applicant to lodge an appeal was on 20 May 2026. Thus, the time for appealing against my order has 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 her supporting affirmation dated 26 May 2026, the applicant explained her delay in lodging the intended appeal by saying that she did not receive the order from the court and when she came to know that her leave application had been refused, it was out of time to appeal.

8.However, such an explanation is clearly unsatisfactory, as the applicant simply alleged that she did not receive the order without explaining why she could not receive the court’s order at her address, nor how she came to know about her leave application being refused. The applicant provided her address in the Summons, which is in fact the same as the one used by this court to send her the court’s order and Form CALL-1. This court’s covering letter dated 6 May 2026 enclosing the order and Form CALL-1 was never returned by post. Thus, the applicant should have received the court’s order at her correct address.

9.At the hearing of the Summons, the applicant was absent. Thus, there was simply no further explanation for her delay in lodging the intended appeal, and I am not satisfied that there was any reasonable excuse for her delay.

10.Moreover, the applicant did not advance any valid ground for her intended appeal. In the Summons and her supporting affirmation, the applicant only mentioned that her problem still existed in her home country, she had severe problem in her home country and if she returned there, she would be killed by her enemies. These are not valid grounds for appeal, as her problems in her country had already been duly assessed but rejected by the Torture Claims Appeal Board. Since the applicant was absent at the hearing of the Summons, there was no further ground advanced by her at all.

11.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).

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

13.As there is no reasonable excuse for the applicant’s delay in lodging the intended appeal, and there is no reasonable prospect of success in the intended appeal, I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

14.For reasons aforesaid, the Summons is dismissed.

The applicant being absent