Magno Merry Khris Fonseca v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 480/2019

[2026] HKCFI 4476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 480 OF 2019

_____________

BETWEEN

_____________

_____________

DECISION

_____________

The application

1.In HCAL 480 of 2019, the applicant, the mother and her daughter applied for leave to apply for judicial review of the Decision dated 28 January 2019 by the Torture Claims Appeal Board (“the Board’s Decision”), which dismissed their appeal against the Director’s decision refusing their non-refoulement claims. This Court dismissed their application. For reason unknown, only the mother made the application for extension of time to appeal to the Court of Appeal in this application. The daughter is not a party. I shall call the mother as the applicant in this application.

2.The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Board. Having considered her evidence, the Board rejected her appeal and affirmed the Director’s Decision.

3.The applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

4.By Form CALL-1 dated 6 September 2022 (“the Court’s decision”), the Court dismissed her application as there is no realistic prospect of success in her intended application.

5.The Court’s decision was sent to the applicant on 6 September 2022 at her last known address without being returned from the Post Office. She is deemed to receive the Court’s decision[1].

6.The time for filing the notice of appeal expired on 20 September 2022[2].

7.By summons filed on 2 July 2026, the applicant applied for appeal against the Court’s decision out of time. She is late for more than 3 years and 9 months.

8.In her affirmation in support of her application, the applicant said that she needed extension of time, without giving any explanation for her delay.

Discussion

9.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, I decide to determine this application on paper without an oral hearing[3].

10.The Court will consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of her case.

11.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

12.The applicant’s claim was rejected by the Director because she had repeatedly refused to submit her reasons in support of her claim. She appealed to the Board. However, she was late to file her notice of appeal.

13.Having considered the circumstances and the applicant’s explanation, the Board refused to extend time to file her notice of appeal. In practical effect, her appeal was dismissed by the Board. The details are set out in Form CALL-1 of HCAL 480 of 2019 [2022] HKCFI 2704.

14.The reason under paragraph 8 is not valid for her delay. The delay is serious and the applicant has not given any explanation for her delay.

15.There is no valid reason from the applicant to challenge the Board’s Decision or this Court’s decision.

16.In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

The applicant was unrepresented.