Khatoon Jannat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 719/2023

[2026] HKCFI 5449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 719 OF 2023

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BETWEEN

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DECISION

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Introductio

1.This is the Applicant’s application by summons filed on 9 September 2026 for extension of time to appeal the order of this Court dated 18 May 2026 (the “Order”) refusing her application for leave to apply for judicial review. 

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review 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.  By 18 May 2026, the time to appeal has expired. 

3.In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that 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.  If the first three factors are resolved against the grant of extension, there is no need to consider the fourth factor.

Length of delay and explanation for the delay

4.The application for leave to appeal was made 3 months and 9 days out of time.  In the context of a 14 days’ period of appeal, the delay is very inordinate.  In her summons, supporting affirmation and her Notice of Appeal, the Applicant acknowledged that her Notice of Appeal was filed out of time and that leave to appeal out of time is required.  But she tendered no explanation for the delay.  The Applicant filed an application for leave to apply for judicial review (the “leave application”) on 15 May 2023.  At the time she was accommodated in private accommodation.  Since January 2026, she was detained in Castle Peak Bay Immigration Centre (“CIC”).  There is no argument that she received the Order and Form CALL-1 late.  Her correspondence with the Court indicates that she has been actively preparing for appeal soon after receipt of the Order.  By a letter dated 18 June 2026 she applied for a copy of the sealed order and transcript of the hearing.  But it was not until almost three months later that she formally made the present application.  The Applicant simply has no explanation for the very inordinate delay.

Grounds of appeal and prospect of success

5.In her summons and Notice of Appeal, she advanced just one ground of appeal.  That ground is not directed at the Board’s decision sought to be judicially reviewed, but at procedural unfairness committed by this Court in determining her leave application.  In paragraph 5 of her Notice of Appeal, she advanced seven basis in support of this ground.

6.In sub-paragraphs (a), (b) and (c), she alleged the Court of having failed to ensure that she was allowed meaningful participation in the hearing given her vulnerabilities.  Under sub-paragraph (a), she claimed she was unrepresented, in detention and had limited practical ability to prepare for the hearing or to formulate legally structured grounds of challenge.  Her leave application was filed in 2023, but she only had between 5 and 8 days’ clear notice to prepare for the hearing and to do so from detention. 

7.The notice of hearing had been sent to her on 1 April 2025.  Even allowing for delay arising from delivery to and within the CIC, she would have at least ten days to prepare for the hearing.  Besides, it is wrong to assume that she should only prepare for the hearing after receiving the notice.  The Applicant should realise that her removal is imminent since her detention in CIC in January 2026. If one has genuine fear of being returned to her home country where her life would be at risk, she should have thought about the hearing or prepared for it all the time.  She should have at the latest seriously prepared for the hearing since January 2026, if not 2023 when she filed the Form 86.  As for her complaint about detention conditions, she had not advanced any argument that the conditions in CIC were appalling or were such as to make it impossible for her to prepare for the hearing.  If they were, she could have sought help from the welfare officer.  She had nothing else better to do in CIC than to prepare for the hearing.  It lies ill in her mouth to say she had no time or suitable environment to prepare for the hearing.  It is important to note that she had not complained about detention conditions or insufficient time for preparation at the time of the hearing before this Court.  The absence of a complaint reflects that these allegations are recent concoctions.  This Court could not have regard to such difficulties which it was not aware of.  

8.Under sub-paragraph (b), the Applicant claims that prior to her detention in January 2026, she had been receiving consultations about her mental impairments which affected her ability in participating in the hearing.  The Applicant exhibited no obvious signs of mental impairment at the hearing.  This Court could not have regard to such alleged impairment which it was not aware of.  The Court repeats its observation that the absence of a contemporaneous complaint casts doubt on the credibility of the complaint.

9.In sub-paragraph (c), the Applicant claims that by reason of the above she “did not have a realistic opportunity to identify and articulate proper public law grounds, or respond meaningfully to the applicable legal framework” and the “judge failed to ensure meaningful participation” by the Applicant.  Even as of now, a few months later, the Applicant could not identify the “proper public law grounds” relating to the Board’s decision which she sought to review.  Thus, this ground is wholly devoid of content.  As for her complaint about the Court’s failure to assure her meaningful participation in the hearing, the difficulties arising from her detention and mental impairment, these difficulties were only known to her.  If she did not inform the Court about her difficulties and vulnerabilities which were unknown and not obvious to the Court, how could she now turn around and accuse the Court of failing in its duty in ensuring her meaningful participation in the hearing.  If there is any truth in her vulnerabilities and difficulties, she is the one who deprived herself of a meaningful participation at the hearing.  This Court feels a strong sense of indignation at the Applicant’s conduct in withholding information relevant to her leave application and the Court’s conduct of the proceedings and then raise the information as grounds of appeal.  This ground is a recent concoction and clear abuse of legal process which delays the refoulement process and wastes judicial time and costs.

10.Sub-paragraph (d) is not a ground of appeal but a statement of legal principle.  Sub-paragraphs (e), (f) and (g) are just repetitions of the above grounds and repeating her complaints about the Court’s failure arising out of her own deliberate non-disclosure of information and relying on some unidentified “public law grounds”.

11.In paragraph 6, the Applicant relied on limitations on access to the internet, mail and telephone communications which are all unparticularised and which this Court could not deal with.  To the Court’s understanding, the detentions condition in CIC, not being a penal institution, are relatively relaxed and reasonable assistance could always be obtained from the welfare officer.

Conclusion

12.The Applicant has failed to explain the substantial delay in appealing and has failed to advance any arguable grounds of appeal with prospect of success.  Hence, her application for extension of time to appeal is refused.  

The applicant is not represented