Gunsay Judith Castro and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1256/2020

[2026] HKCFI 5714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1256 OF 2020

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BETWEEN

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D E C I S I O N

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The application

1.The applicants are mother (“the mother”) and son (“the son”). This is their joint application.

2.The mother is an illegal immigrant by staying in Hong Kong without permission. Acting for herself and for the son, the mother lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected the appeal and affirmed the Director’s Decision.

3.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

4.By Form CALL-1 dated 21 January 2026 (“the Court’s decision”), the Court dismissed their application as there was no realistic prospect of success in their intended application. On the same day, the Court’s decision was sent to the applicants’ last known address without being returned by the Post Office. They were deemed to receive the Court’s decision.[1]

5.The time for them to file their notice of appeal expired on 4 February 2026[2].

6.In her summon filed on 24 August 2026, the 1^st applicant asked for extension of time to file the notice of appeal. They are late for 6 months and 20 days.

7.In her affidavit in support of her application, the mother said that she did not receive the Court’s decision.

Discussion

8.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

9.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)  he 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.

10.I shall consider the merits of their 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 applicants’ claim was based upon the 1^st applicant’s allegation that if refouled, she and her son will be harmed or killed by her husband because she gave birth to the son with another man.

13.The Director rejected their application because their claim was not substantiated. They appealed to the Board.

14.The Board agreed with the Director that their claim was unsubstantiated.

15.The Board also had separate consideration of the child specific issues of the daughter’s claim and found that she would not face any real risk if she returns to Bangladesh.

16.The applicants have raised no valid ground to challenge the Board’s finding of the facts or to challenge the Court’s decision.

17.There is no realistic prospect of success in their intended appeal.

18.In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their joint application.

19.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the son’s application a nullity.

The applicants were unrepresented.