Munyasya Caroline Wavinya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3384/2019

[2026] HKCFI 5842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3384 OF 2019

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D E C I S I O N

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Introduction

1.This is the Applicant’s application by summons filed on 18 September 2026 for extension of time to appeal the order of this Court dated 6 August 2026 (the “Order”) refusing her leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Decision”).

2.The Applicant is a national of the Republic of Kenya.  She overstayed in Hong Kong since 18 September 2010 and lodged a torture claim under the Immigration Ordinance on 13 November 2010 which was later converted into a non-refoulement claim under the Unified Screening Mechanism (“USM”).  Her claim was rejected by the Director of Immigration (the “Director”).  Her appeal against the Director’s decision was dismissed by the Board’s Decision.  Her application for leave to apply for judicial review against the Board’s Decision was refused by the Order this Court dated 6 August 2026, which expressly and unequivocally refused her leave application. 

3.By an obvious typographical error, the order of the Court as stated in the heading of the Form CALL-1 was “leave to apply for Judicial Review be granted” instead of “leave to apply for Judicial Review be refused.”  But there is no mistake in the seal order.  The mistake was promptly discovered by the court clerk and Corrigendum to that effect in respect of the Form CALL-1 was issued on the following date, i.e. 7 August 2026.  There was no need to issue a Corrigendum in respect of the sealed order as there was mistake in the sealed order.

The law

4.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 the judge’s order to the Court of Appeal within 14 days after such order.  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 delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.  If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

The facts

5.On 18 September 2026, the Applicant filed the summons for extension of time to appeal the Order of this Court.  By the time the summons was filed, it was 43 days after the date of the order as stated in the sealed order or 42 days after the date of the Corrigendum.  Strictly speaking, the application was 29 days late.  However, for the purpose of this application, in all fairness to the Applicant and giving her the benefit of the doubt, the Court shall treat the application as being 28 days late only, counting from the date of the Corrigendum.  The ground of appeal as stated in the summons and supporting affidavit is that she was confused by the order as stated in the Form CALL-1 and in the Corrigendum.  The Applicant gave no explanation for the delay.

6.To assist her to make a proper application for extension of time, the Applicant was given directions by letter to file a statement within fourteen days of the directions: (1) stating her explanation for taking 42 days to apply for leave to appeal out of time; (b) the date when and the circumstances under which the Court’s Corrigendum dated 7 August 2026 was first received or brought to her notice; and (c) the grounds of the intended appeal.  She was also informed that her application for extension of time will be determined 21 days after the date of the directions regardless whether the directions have been complied with.  In response, the Applicant sent in a four-page letter purporting to be an explanation for the delay which also serves as a ground of appeal.  She also annexed copies of medical appointment slip and medical referral as supporting evidence.

Explanation for the delay and grounds of appeal

7.The Applicant gave four explanations for the delay. 

8.First, she claimed that the Order gave her a shock which brought about an untold mental torture to her health.  She said she thought her burden of proof under the USM was to give an account of her case but then to her shock she received “a letter of decision rejecting [her] claim and this development had brought an untold mental torture to [her] health”.  Presumably, the “letter of decision” received by the Applicant is the Form CALL-1.  She started the non-refoulement proceedings in September 2010.  Her claim had been rejected by the Director and then by the Board.  She was legally represented by the Duty Lawyer Service before the immigration officer.  It is impossible that despite all the briefing by the Immigration Department, proceedings and consultations by the Duty Lawyer Service and voluntary organisations, including Christian Action and her own solicitors prior to the hearing of the leave application, she understood it was only her burden to give an account of her case and that was all.  It lies ill in her mouth to say that she reasonably expects that her case is bound to be accepted and then she suffered a shock which triggered mental torture upon learning that her application for judicial review was rejected.  

9.She produced a medical referral printed on 21 January 2025 and a CT scan appointment slip, presumably to support the “mental torture to her health” caused by the Form CALL-1 and Corrigendum.  The referral was issued by the Department of Medicine & Geriatrics of Princess Margaret Hospital which followed up on her HIV condition.  It was addressed to “Whom it may concern”, not to any particular doctor or hospital or clinic.  It stated that the Applicant has been followed up at Princess Margaret Hospital for HIV infection, that she also suffers hypertension, depression and anaemia and described the medication prescribed for her on 21 January 2025.  It is a fact that the Applicant suffered HIV infection before she came to Hong Kong.  She had expressed to the Board that her HIV condition is not a concern or problem: paragraph 28 of the Form CALL-1.  She also produced a CT scan appointment slip dated 14 January 2026 showing that she had an appointment for CT scan on 20 August 2026.  The medical referral and the CT scan appointment slip were all issued before the date of the Form CALL-1.  From the chronology, it is difficult to see any nexus between treatments prescribed or planned before the decision in the Form CALL-1 was issued could support the existence of a shock which occurred later or how the decision in the Form CALL-1 could have triggered a shock which brought an untold mental torture to her health necessitating treatment of some pre-existing medical conditions.  These documents could not support her claim about the shock and the mental torture it triggered.  The Applicant has also submitted no other reasons or documents or medical evidence to support her alleged mental torture.  This ground bears the hallmark of a heavy exaggeration and is incredible.  

10.Second, the Applicant claimed that she used to be legally represented by a private lawyer and the Christian Action.  She was indeed legally represented at the hearing of her leave application before this Court.  Then, she said:

“because of my delay to update them after the rejection of my judicial review, they now withdrew from their representation.”

11.There is neither credence nor substance in this assertion.  As admitted by the Applicant, she was refused legal representation because of her own failure in updating her solicitors after the rejection of her leave application.  As the Applicant was legally represented, the Form CALL-1 was sent to her solicitors’ office.  Her solicitors must have read the decision and knew her leave application was rejected.  There was nothing for the Applicant to update her solicitors about.  Whether to continue to represent her is a matter solely for her solicitors and/or Christian Action.  It could not be a reasonable explanation for the delay.  Insofar as it may have any bearing on the delay, it was premised on the Applicant’s claim that she was sick or had a mental shock.  However, for reasons as explained in the preceding paragraphs, that explanation is rejected.

12.Third, the Applicant alleged that she did not receive the Form CALL-1 direct from the Court, but through her solicitors and she was prevented from receiving it in time because she was sick.  She said:  

“Again, I got the dismissal letter from my legal representative which also prolonged the delay.  The letter or decision to reject my JR did not come straight to my mail box and because I was sick, my lawyer was waiting until I recovered and went to his office”

13.This ground is full of inherent contradiction and inconsistency.  The scenario painted by the Applicant is that the Form CALL-1 was sent to her solicitors, but because she was sick she did not attend her solicitors’ office and her solicitors did nothing but to wait for her to come and hence, the delay.  The basic premise of her explanation is that she was sick.  However, for reasons as explained in paragraphs 8 and 9, her claimed that the Form CALL-1 triggered her mental torture is hardly credible and unsupported by credible evidence, not to mention medical evidence.  She had mentioned no other medical condition which prevented her from attending her solicitors’ office.  Putting these obvious observations aside, her explanation is internally contradicting.  In effect, she is saying that the Form CALL-1 triggered her mental torture and she became sick.  She therefore could not attend her solicitors’ office and did not know about the decision.  Hence the delay to appeal.  If she could not attend her solicitors’ office, she could not have known about the decision in the Form CALL-1.  Then there was nothing to trigger her mental torture and she could have no reason for not attending her solicitors’ office.  Assuming that she had been informed by her solicitors about the decision verbally, which could trigger her mental torture, but then she would have to admit that she was lying when she said did not know about the decision.  This is, of course, not her case.  The scenario she pictured is wholly impossible and destroys her credibility entirely.

14.The Applicant’s claim that her solicitors could do nothing but to wait for her to recover and to attend the solicitors’ office for her to be informed is also highly incredible.  This allegation is not supported by her solicitors’ evidence which the Court reasonably expects, if the allegation is true.  The Form CALL-1 was sent to her solicitors’ office, her solicitors must have read the decision and informed the Applicant about it.  They must know that she only had fourteen days to appeal and must have so advised her.  Any reasonably competent solicitor in the circumstances must have informed his client about the decision, explained it to him and advised him of the period of appeal.  The Applicant’s story that her solicitors just did nothing but to wait for her to recover and to attend the solicitors’ office is just a convenience excuse, bare assertion and not credible. 

15.Fourth, the Applicant said she had difficulty understanding the word “Corrigendum” and she could find no one to explain the decision to her.  I accept that she may not know what the word “Corrigendum” by itself means, but do not accept she did not know what it means after reading the entire document which said in simple English that the words “leave to apply for Judicial Review be granted; and” should read “leave to apply for Judicial Review be refused; and”.  Reading the entire Corrigendum, it is incredible that she did not understand that her leave application was refused and that she honestly thought it was granted.  It is also her story that her solicitors waited for her to come and she went to see her solicitors after she recovered.  When she turned up at the solicitors’ office, she must have been explained the content of the Form CALL-1 and the Corrigendum.  She left it vague as to when she recovered and went to see her solicitors.  The Court could not know whether she took prompt action to appeal after having been properly advised.  That is not important as her story is not believed.  She was only trying to capitalise on a careless typographical mistake which arose in the course of preparing the Form CALL-1.  There is no truth or substance in this assertion, whether as an explanation for the delay or as a ground of the intended appeal.

16.The Applicant is not illiterate.  She was able to conduct the proceeding at the first hearing before the Board on 24 May 2019 without an interpreter until at one stage when she said she was too upset and unwell to continue.  Reading the transcript of that hearing and her letter, it is clear that her English is up to a practical or working standard and she was able to express herself effectively and communicate in English without difficulties.  Reading the transcript of the second hearing when she was assisted by an interpreter, it appeared that she was very intelligent, capable of conducting the proceedings, understanding the questions asked and presenting her answers.  She could have no difficulties in understanding the Form CALL-1 or the Corrigendum.  In conclusion, I do not accept her explanation as incredible.  She has no reasonable explanation for the delay.

Conclusion

17.A delay of 28 days in the context of an appeal period of 14 days is substantial.  For reasons as explained above, I found the Applicant has no reasonable explanation for the substantial delay.  Despite clear directions that she was required to the state the grounds of her intended appeal, the Applicant has not advanced any grounds other than a bear mention of confusion created by the Corrigendum.  That assertion is rejected as an explanation of delay and as a ground of her intended appeal.  She has not asserted what is wrong in the Court’s decision in making the Order. I consider the Applicant’s grounds of appeal has no prospect of success.  In view of the finding above, there is no need to consider the question of prejudice to the respondent if extension of time is granted.  There is no basis for this Court to exercise its discretion to grant her extension of time to appeal.  Accordingly, the Applicant’s application for extension of time to appeal is refused.

The Applicant is not represented