IJAZ ZULQARNAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1028/2020

[2025] HKCFI 5471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1028 OF 2020

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D E C I S I O N

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1.  By a summons issued on 17 September 2025, the Applicant applies for extension of time to appeal the order of this Court dated 8 August 2025 (“the Order”) refusing him leave to apply for judicial review (“JR”). His intended JR was against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) dated 15 May 2020 on his non-refoulement claim.

2.  An applicant does not require leave to appeal against a Court of First Instance (“CFI”) judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g), Rules of the High Court, Cap 4A). However, an applicant who wishes to appeal against such refusal has to observe the time limit under Order 53, rule 3(4), i.e., within 14 days after the refusal. The 14-day period against the Order expired on 22 August 2025. The Applicant was late for almost one month when the present summons was filed.

3.  A CFI judge has the power to extend the said 14-day appeal period under Order 59, rule 2B(6). The application to extend time must be made promptly. It should be supported by an affirmation deposing to any facts relied upon by an applicant and giving a full account of, and an explanation for, the whole delay since the expiry of time. In considering whether to extend time for the intended appeal, the Court shall have regard to: (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospect of success in the intended appeal; and (iv) the prejudice to the respondent if extension of time was granted (Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346).

4.  In the Applicant’s supporting affirmation, the only explanation for the delay put forward was that the Applicant was not aware of the 14-day deadline under the law. This obviously cannot be accepted as a justified reason. Nevertheless, the delay in this case is not very significant, and it does not seem to me that there will be any prejudice if an extension of time is granted. I should instead focus on the prospect of success in the intended appeal.

5.  It is well established that the Court does not provide a further avenue of appeal on the merits of the underlying non-refoulement claim. In an appeal against refusal of JR leave in a non-refoulement case, the Court of Appeal would only examine the decision of the CFI judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed (Nupur Mst v Director of Immigration [2018] HKCA 524).

6.  In the decision refusing the Applicant leave to apply for JR, I explained that the high standard of fairness for this type of cases does not mandate the granting of legal assistance to a non-refoulement claimant at all stages of his claim handling process. I was unable to see how the Applicant was prejudiced by the lack of legal representation in the proceedings before the TCAB. I had also reviewed the substance of the TCAB’s decision vigorously, but did not identify any errors in the public law sense. In the Applicant’s summons and supporting affirmation, the Applicant failed to put forth any proposed ground(s) of appeal. In the absence of any suggested error in my decision to refuse him JR leave, I do not see any prospect of success in his intended appeal at all.

7.  Having considered all the relevant factors to which I should have regard, I decide that the interest of justice does not require me to grant an extension of time in the circumstances of this case. Accordingly, the application for extension of time to appeal is refused and the Applicant’s summons is dismissed.