Maskeen Muhammad v Torture Claims Appeal Board/

HCAL 343/2026

[2026] HKCFI 4142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 343 of 2026

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to file the leave application be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 6 February 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 November 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

The delay in taking out the leave application

2.The leave application was filed 14 months and 9 days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance andOrder 53, rule 4(1) of the Rules of the High Court, a leave application shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers there is good reason for extending the period within which the application shall be made. The leave application was made almost one year beyond what is usually regarded as having been promptly made. The Applicant has to show good reason for extending the time to file the leave application.

3.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ.

Explanation for the delay

4.Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application. At the hearing on 11 May 2026, the Court attempted to explore the reason for the delay with him. The Applicant’s explanation is simply that he had never received the Decision and has no knowledge that the Decision had been made. His case is that had a traffic accident about a month after he was released on recognizance from Castle Peak Bay Immigration Centre (“CIC”). Both of his legs were injured. He was hospitalized. After he was discharged, he stayed at home for his recovery. After he had recovered, he reported for recognizance at CIC on 8 January 2026. He was detained and informed that his appeal had been concluded. Then, on 6 February 2026, he filed his Form 86.

5.The Applicant’s explanation is devoid of substance and particulars. He could give no particulars about all the events which prevented him from taking out the leave application during those 14 months. He could not remember when he was discharged from hospital after the accident. He could give no information whether he was hospitalized again and, if he was, when and where. He produced numerous documents, mostly appointment slips and demand notes from the Hospital Authority for his hospital maintenance fees. Those demand notes were mostly reminders of overdue payments. Those documents give no clue as to when the accident took place, when he was hospitalized and discharged. He said he had documents kept by the CIC or the Correctional institutions which could enable him to ascertain those dates, but he has no access to those documents. Hence, directions were given to the Immigration Department to assist him to make those documents available.

6.An immigration officer was instructed to interview the Applicant with the assistance of an Urdu interpreter to assist him to look for the documents. At the interview, he clarified there are no relevant documents kept in his property in the CIC and he also confirmed that he had not served any sentence in Hong Kong. Hence, he had no relevant documents kept by CIC or any Correctional Institutions. He claimed he had medical documents from United Christian Hospital, Queen Elizabeth Hospital and Buddhist Hospital. Upon inquiries with United Christian Hospital and Queen Elizabeth Hospital, the hospitals informed the immigration officer that there are no records showing that the Applicant has sought medical assistance in these two hospitals. No document was obtained from Buddhist Hospital. According to some other documents produced by the Applicant, Buddhist Hospital had requested the Applicant for supplementary information in connection with his request for documents. Apparently, the Applicant did not comply with the request. He was abusing the immigration officer by causing him to look for information which does not exist and was uncooperative with Buddhist Hospital which may have the relevant documents.

7.The immigration officer also made arrangements to facilitate the Applicant to retrieve seven photographs from his mobile phone showing his injured left foot. But the photographs could not provide the information sought. Arrangements were also made to enable the Applicant to contact his friends whom he had asked for assistance to remind them to send the documents to him directly. Obviously, nothing useful had been unearthed.

8.At the hearing on 27 May 2026, the Applicant submitted a written statement in Urdu which was interpreted by the court interpreter. He essentially repeated his assertions made at the hearing on 11 May 2026. He repeated that he never received the Decision and emphasised that he did not even know whether his case was still ongoing or not. He added that while he was recovering at home, staff from the International Social Service had visited him and knew he had an accident. He asserted that his case officer also knew he had an accident and should have informed the Board to stay the proceedings. He accused the case officer for not cooperating with him.

9.From the documents available, the Court accepts that the Director’s Notice of Decision was issued on 21 May 2024; that the Applicant filed a Notice of Appeal on 3 June 2024; that he did not attend the hearing of the appeal before the Board on 20 August 2024 because he was hospitalised; and that the Board issued the Decision on 27 November 2024. According to the Decision, a staff of the secretariat of the Board, with the assistance of an Urdu interpreter, had contacted the Applicant on the hearing day and was told by him that he had an accident and was being hospitalised. The staff reminded him that he need to submit a written explanation together with medical certificate, if he wanted the Board to consider fixing another hearing. The Applicant responded that he understood the instructions and would contact a friend to help him to do so. However, he never responded. After three months, he could no longer be reached on the telephone. Then, the Board proceeded and issued the Decision on 27 November 2024. All these undisputed evidence together with the Applicant’s claim that he was given recognizance on 6 June 2024 and met with the accident after he reported his recognisance for the first time supports his claim that he had an accident in early July 2024 and was hospitalised. That was four and half months before the Decision was issued. It is not impossible, but takes more to convince the Court that by the time the Decision was issued, he was still hospitalised or immobile as a result of the accident.

10.But beyond that, the Applicant could provide no explanation why he was unaware of the Board’s Decision or evidence when he was discharged from the hospital after the accident nor could he provide evidence that he was immobile since his discharge from hospital. The many appointment slips for consultation and demand notes from Buddhist Hospital he produced could not answer those two questions. Rather, they raised questions why the Applicant kept these documents but not other documents, why he was selective in producing the documents and why he did not comply with Buddhist Hospital’s request for information to enable his medical record to be released. He could not even provide an approximate date when he was discharged from hospital. He was only willing to give a very superficial picture that he was admitted into hospital as a result of the traffic accident, treated and discharged to his home for recuperation, and after he recovered and reported to CIC he was detained and told that his appeal had been disposed of.

11.On the other hand, the correspondence address given by the Applicant to the Immigration Department on 6 June 2024 when he released from CIC was at Pak Tai Street. His correspondence address was changed to Sheung Heung Road since 5 September 2025 until 8 January 2026 when his recognizance was revoked and he was detained. He must have been very much mobile between 5 September 2025 and 8 January 2026, otherwise he could not have changed his correspondence address and reported regularly to the Immigration Department during part of that period of time.

12.The Court is unable to accept the Applicant’s evidence that he had never received the Decision from the Board and/or did not know that the Decision had been made. He had received the notice of hearing from the Board notifying him of the hearing date and informing him that if he did not appear the Board would proceed to hear his appeal in his absence. On the day of the hearing, he had been reminded by the staff of the Secretariat that he need to submit a written explanation for his absence together with medical certificate if he wanted the Board to fix another hearing for him. He expressed that he understood the instructions and would arrange for a friend to help him to comply. He must know his appeal is being actively considered and will be processed without a hearing if he did not submit a written explanation for his absence. He must know that the Decision will arrive in matter of months. Against such background, the Court is satisfied that when he said he had never received the Decision and emphasised that he did not even know whether his case was still ongoing, he was lying and deliberately attempting to mislead the Court.   

13.The Court is prepared to accept the Applicant had an accident in early July 2024 and was hospitalised beyond late November 2024 when the Decision was issued. Depending on the evidence, it is prepared to accept a reasonable extension of time since his discharge from hospital as a reasonable explanation for the delay. The Applicant could not produce any evidence when he was discharged from the hospital or when he recovered mobility. Particularly, it is difficult to accept that he had been discharged from hospital when he was still immobile and he remained immobile for 18 months after the incident until January 2026. In the absence of medical evidence, the Court could not accept he had been immobile since the accident in early July 2024 until January 2026 and was thereby prevented from making the leave application. The Court could not accept that he did not remember when he was discharged from hospital. He was not telling the truth.

14.The Applicant said that he did not know about the regulations and time limits. He submitted that he ought to be told about the time limits instead of being required to find it out himself. However sensible that proposition may appear to him, the fact is that it is he who made the application for protection. The burden is clearly on him to apply and prove his claim. If that failed and if he wishes to pursue the matter further, the burden remains on him to prosecute an appeal or a review of the decision. It is therefore his burden to find out the necessary or applicable procedures and to take the necessary steps. His lack of knowledge of the procedures and time limits is no excuse.

15.Three months is usually a more than adequate period to do so, particularly if one’s life is genuinely at risk. One would have spared no time to make inquiries and to take the necessary action. The Applicant has no reasonable explanation for the almost one year’s delay. The leave application was not promptly made. This is an obvious case where an applicant just ignored the Board’s decision dismissing his appeal against the Director’s refusal of his non-refoulement claim and then raised an application for review when his removal became imminent. The Court could not find any good reason to extend the time for filing his leave application.

Conclusion

16.For these reasons, extension of time to file the leave application and the leave application are refused.

Dated the 23^rd day of July 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1