Re Ali Mohasin

On 1 September 2026, the Court of Appeal (Barma JA and Mimmie Chan J) handed down judgment in Re Ali Mohasin, CAMP 167/2023, [2026] HKCA 1580, dismissing an application for extension of time to appeal against the refusal of leave to apply for judicial review. The applicant, who was unrepresented and absent at the hearing, had sought to challenge a decision of the Torture Claims Appeal Board dismissing his non-refoulement claim.

The applicant, a Bangladeshi national, had his claim rejected by the Board on 12 April 2019. He filed a Form 86 seeking leave to apply for judicial review on 23 April 2019, and in his supporting affirmation expressly requested an oral hearing under O.53 r.3(3) of the Rules of the High Court (Cap 4A). Despite this request, DHCJ KW Lung dealt with the leave application on the papers and refused leave on 20 September 2022 ([2022] HKCFI 2878). The applicant subsequently sought an extension of time to appeal, which the Judge also refused on 17 January 2023. The applicant renewed the extension application before the Court of Appeal by summons filed 20 April 2023.

The Court of Appeal acknowledged that, by reason of the clear wording of O.53 r.3(3) and the applicant's express request for an oral hearing, it was not open to the Judge to determine the leave application on the papers, citing Re Hossain Anowar [2023] HKCA 1361, Re Mondal Sumitra Rani [2023] HKCA 1063, and Re Pervin Jahanara [2023] HKCA 1064 (§6). The court directed an oral hearing on its own motion and, in addition to determining the extension application, exercised the discretion afresh to consider whether leave should have been granted.

The Court held that:

(1) Despite the procedural irregularity, the intended appeal was wholly lacking in merits. The applicant had not identified any arguable error of law by the Judge, any relevant matter he had failed to consider, or any reason why the refusal of leave was wrong (§30).

(2) The Board's findings that the applicant's evidence was materially inconsistent and mere speculation, and that adequate state protection and internal relocation options were available in Bangladesh, were findings open to the Board on the evidence and were sufficiently canvassed by the Judge (§29).

(3) An application for leave for judicial review is not a rehearing of the appeal to the Board, and the court will only intervene if public law grounds are established (§28).

The summons filed on 20 April 2023 was accordingly dismissed.

For practitioners handling non-refoulement judicial review work, the practical takeaway is this: even where the judge below has erred in determining a leave application on the papers despite an express request for an oral hearing, the Court of Appeal will not grant an extension of time for a hopeless appeal. The court will exercise the discretion afresh and apply the same threshold. Applicants must still condescend to particulars identifying the procedural or public law errors allegedly committed by the Board; bare assertions of risk upon return will not suffice.