ELI KUSMIATI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1960/2020

[2026] HKCFI 4614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1960 OF 2020

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BETWEEN

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D E C I S I O N

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Background

1.  By way of summons filed on 13 July 2026 (“the Summons”), the 1^st applicant applies for an extension of time to appeal against my order made on 24 June 2026, which dismissed the 1^st applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 16 September 2020.

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 24 June 2026, the last day for the applicant to lodge an appeal was on 8 July 2026. Thus, the time for appealing against my order has expired, and the 1^st 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 her supporting affirmation dated 13 July 2026, the 1^st applicant explained her delay in lodging the appeal by saying that the documents were lost in post and she obtained the court’s order and Form CALL-1 after searching the court’s file, but by then she had already missed the deadline to appeal.

8.  At the hearing of the Summons on 6 August 2026, the 1^st applicant explained her delay by saying that she received the court’s letter containing the court’s order on 9 July 2026, and the letter was placed by the left side of her letter box because the letter box was small and already full. She later changed her version by saying that the court’s letter was placed on top of the metal box opposite to her letter box.

9.  When I asked the 1^st applicant why she gave a different explanation in the Summons, as well as in her affirmation, she said that the Summons and the affirmation were prepared by her friend, she did not know why her friend wrote another explanation in the Summons and her affirmation, she did not understand English and she did not know what were written there.

10.  The 1^st applicant’s explanation in the Summons and her affirmation is clearly contradictory to what she said at the oral hearing. In the Summons and her affirmation, she said that she did not receive the court’s order because it was lost in post and she only obtained the court’s order and Form CALL-1 after searching the court’s file. At the oral hearing, she said that she did receive the court’s letter with the court’s order by post on 9 July 2026, although the letter was placed somewhere near her letter box either on the left side of the letter box or on top of the metal box opposite to her letter box. The explanations given by the 1^st applicant are clearly not satisfactory, as they do not tally with each other.

11.  Moreover, the 1^st applicant did not give any valid ground for her intended appeal at all. There was no ground of appeal given by her in the Summons and her affirmation. At the oral hearing, when I asked the 1^st applicant for her grounds of appeal, she simply said that she wanted to take care of her children here until they could take care of themselves. When I asked her what was wrong with my decision, she said that she did not think that my decision was wrong but she just wanted time to take care of her children.

12.  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).

13.  The 1^st applicant has failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal.

14.  As there is no satisfactory explanation for the 1^st applicant’s delay in lodging the intended appeal, and there is no reasonable prospect of success in the intended appeal, I am not prepared to grant any extension of time for the 1^st applicant to pursue such a hopeless appeal.

Conclusion

15.  For reasons aforesaid, the Summons is dismissed.