MUHAMMAD WAQAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2312/2020

[2026] HKCFI 59

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2312 OF 2020

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D E C I S I O N

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Introduction

1.  On 9 September 2024, the court received a fax from the Immigration Department.  In the fax, the Immigration Department informed the court that the applicant wanted to withdraw his judicial review application as he wanted to go back to his hometown as soon as possible. Enclosed with that fax was a copy of the letter in English signed by the applicant.  The letter was dated 27 August 2024.  

2.  In the letter, the applicant stated that he wanted to withdraw (“Withdrawal Letter”) his judicial review application.  He stated: 

“Please withdraw all my cases in Hong Kong as I want to go back to my home country as soon as possible. My problem in my home country is solved and it is safe for me to go back home.”

3.  On the strength of this letter from the Immigration Department and the Withdrawal Letter, a court on 29 April 2025 handed down a decision (“Decision”) dismissing the applicant’s application for leave to apply for judicial review (“Leave Application”).  In dismissing the Leave Application, the court considered the Withdrawal Letter as well as the merits of the Leave Application.  

4.  The Decision together with the order of dismissal was posted to the applicant on 29 April to his given address, which was Room A, 4^th Floor, 23A Lock Road, Tsim Sha Tsui.  Up to today the court received no return of these documents by post undelivered.  In the circumstances, in the ordinary course of posting, I believe that the applicant would have received the court’s decision as well as the order within several days of 29 April 2025. 

5.  On 20 October 2025, the applicant issued a summons to apply for the extension of time to appeal against the Decision.  In the affirmation, the applicant stated that the reason why he needed to apply for the extension of time because he was late and he did not get the Decision in the letterbox. 

The Law

6.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the time limit for an appeal to the Court of Appeal is 14 days after the order of the court.  In other words, the applicant’s application for the extension of time was late for almost six months. 

7.  The guidelines governing the discretion for an extension of time to appeal against the decision refusing leave to apply for judicial review therefore apply.  The court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospects of success of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted; see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.  

8.  At the hearing, the court showed the applicant the Withdrawal Letter.  The applicant confirmed that the signature in the Withdrawal Letter was his.  He stated that he wrote the Withdrawal Letter when he was very confused because his wife in Hong Kong had just had a miscarriage. He said that about 4 months ago, he had written to the Immigration Department informing them of the cancellation of the Withdrawal Letter. 

9.  The applicant said at the hearing that after he received the Decision, he went to the Immigration Department.  There, he was asked if he wanted to go home, was told that if he wanted to go home, he would be detained.  The applicant then told the Immigration Department that he wanted to withdraw the Withdrawal Letter.  

10.  When the court asked the applicant whether he was able to show the court his cancellation letter which he said he sent to the Immigration Department, he said that he had not brought a copy with him. He told this court that he could not read or write. In the past, he believed that people had misguided him.  He said that a few days ago, when he went to the mosque to pray, he met someone who was prepared to help him with his case. That person he met had prepared a four-page written submissions which the applicant submitted to the court at the hearing. 

11.  The applicant said that if he were to be sent back home, his life would be in danger.  The applicant broke down in tears at the court.  I have great sympathy for the applicant.  However, the court has to consider the relevant principles and the law when considering his summons. 

12.  As I referred to the above, the applicant was late for about 6 months when he filed the summons for the time extension.  A delay of six months, in my view, is a substantial delay.  The longer the delay, the better the reason a person should be required to provide.  However, the applicant has provided no good reason at all.  In his supporting affirmation, all that was stated was a very vague explanation that he received the Decision late.  There is no reference as to when he received the Decision and why he would have received the Decision late.  In the circumstances, I reject his explanation.

13.  Despite a well-typed four-page submission, which the applicant said his friend had kindly prepared for him, with respect, I do not find any reference at all to any proposed grounds of appeal against the Decision. In my view, it would appear that the applicant seemed to have taken out the summons in order to buy time.

14.  Since his alleged letter of cancellation sent to the Immigration Department is a very important document, I am surprised that he would not have bothered to either retain a copy or to bring a copy to court. His explanation that it was left at home is not reasonable. I therefore do not accept that he has validly withdrawn the Withdrawal Letter.  Hence, I find that his withdrawal application by the Withdrawal Letter is still binding on him.

Conclusion

15.  Having anxiously examined the facts and the chronology and evidence of this case, despite my full sympathy to his present circumstance, I am disinclined to exercise my discretion to extend the time to the applicant to serve his appeal out of time.  

16.  The summons is therefore dismissed.