SHIEKH AFTABUDDIN v. DIRECTOR OF IMMIGRATION

HCAL 3542/2019

[2026] HKCFI 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3542 OF 2019

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D E C I S I O N

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Background

1.  By way of summons filed on 5 December 2025 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 23 October 2025, which dismissed the applicant’s application for leave to apply for judicial review in respect of the Director of Immigration’s decision dated 31 December 2013.

2.  Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

3.  In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4.  As my order was made on 23 October 2025, the last day for the applicant to lodge an appeal was on 6 November 2025. The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

5.  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 (see Jagg Singh v Torture Claims Appeal Board and another [2020] HKCA 844).

6.  However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike [2019] HKCA 702).

Discussion

7.  In the Summons and his supporting affirmation dated 5 December 2025, the applicant mentioned that he did not receive any order from the court and hence he was out of time to appeal. He also mentioned that his problem is severe and still exists in his home country and if he returns to his home country, he will be killed by his enemies.

8.  At the hearing of the Summons on 27 January 2026, the applicant claimed that he did not receive my decision at all as he had moved to a new address since 14 August 2025. He was informed by an officer of the Immigration Department about my decision about 1 or 2 weeks before he filed the Summons on 5 December 2025, but he still does not have a copy of my decision.

9.  When I asked the applicant for his grounds of the intended appeal, he merely said that he still has problem back home and his wife and children are here in Hong Kong.

10.  The delay in the present case is not for too long and I accept that the applicant might not have received my decision because he had moved to a new address.

11.  However, the arguability of the intended appeal is an important consideration (see Re Gurung Min Bahadur, supra), and the applicant provided no valid ground for his intended appeal at all. What he said at the hearing concerning his problem back home and his family being here in Hong Kong cannot amount to any valid ground for his intended appeal against my decision nor for the intended judicial review.

12.  The Director of Immigration had already assessed and determined the applicant’s problem back home by his decision dated 31 December 2013. The applicant did not appeal against that decision to the Torture Claims Appeal Board. He only applied to this court for leave to have judicial review in respect of that decision after more than 5 years, and his application was dismissed by me. Clearly, the applicant cannot ask the court to re-assess his problem back home again.

13.  The fact that he has his family here does not help him either. As held by the Court of Final Appeal in Comilang Milagros Tecson v Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.

14.  For this application to be successful, the applicant must demonstrate that this court had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

15.  The applicant failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal.

16.  In the circumstances, there is no reasonable prospect of success in the intended appeal or the intended judicial review and I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

17.  For reasons aforesaid, the Summons is dismissed.