Md Hashem Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 139/2021

[2026] HKCFI 5988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 139 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to file the leave application be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 8 February 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 24 February 2020 dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection (the “Decision”).

2.On 12 October 2026, the Immigration Department forwarded a copy of a letter from the Applicant to the Immigration Department applying to withdraw his leave application (the “withdrawal application”) asserting that all the problems in his home country have been solved.

3.The leave application was filed one year and fourteen days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers there is good reason for extending the period within which the application shall be made. The leave application was made nine and half months beyond what is usually regarded as having been promptly made. The Applicant has to show good reason for extending the time to file the leave application.

4.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. 

5.Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application. The leave application was not promptly made. The Court could not find any good reason to extend the time for filing his leave application. As indicated in his letter, he has no good grounds for judicial review. It is appropriate that both extension of time to file the leave application and his leave application should be refused. In the circumstances, the Court will make no order in respect of the withdrawal application which was not even addressed to the court.  

Conclusion

6.For these reasons, extension of time to file the leave application and the leave application are refused.

Dated the 29^th day of October 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1