Fabre Shannon John Tenestrante v. Torture Claims Appeal Board

HCAL 341/2022

[2026] HKCFI 4897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 341 OF 2022

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BETWEEN

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D E C I S I O N

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Background

1.By way of summons filed on 9 June 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 decision of the Torture Claims Appeal Board dated 20 January 2022.

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 applicant’s supporting affirmation dated 9 June 2026, he explained his delay in lodging the appeal by saying that he did not receive the letter.

8.At the hearing of the Summons on 20 August 2026, the applicant further explained his delay by saying that he did not receive this court’s decision at all as he had changed his address in August 2025 and he had reported his new address to the Immigration Department at that time. However, when I told the applicant that the Immigration Department still gave his old address to this court in December 2025, he changed his explanation by saying that he only moved to a new address in February 2026.

9.The applicant also claimed that he came to know about this court’s decision through the help of his friend and he had never seen this court’s decision. When I asked the applicant why then he could attach a copy of this court’s decision to his supporting affirmation, he said that his friend helped him to do that.

10.The applicant’s explanations at the oral hearing are clearly not satisfactory, as he has given inconsistent accounts on when he changed his address. He claimed that he had never seen this court’s decision, but when he affirmed his affirmation before a commissioner for oath, he would have seen that a copy of the decision was attached to his affirmation.

11.Moreover, the applicant did not give any valid ground for his intended appeal at all. He only stated in the Summons that my judgment was unreasonable without giving any particulars. At the oral hearing, when I asked the applicant for his grounds of appeal, he simply said that his problem in the Philippines was still existing. When I asked the applicant why he said that my decision was unreasonable, he admitted that he had no answer to that. Thus, it is clear that the applicant had no valid ground for his intended appeal.

12.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).

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

14.As there is no satisfactory explanation 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

15.For reasons aforesaid, the Summons is dismissed.

The applicant appearing in person