EBAGUA DESTINY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 160/2020

[2026] HKCFI 4203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 160 OF 2020

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D E C I S I O N

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Introduction

1.  On 16 April 2025, the court sent an order (“Order”) together with the decision (“Decision”) of this court in the prescribed “Form CALL-1” ([2025] HKCFI 1392).

2.  In the Decision, the court dismissed the applicant’s application for leave to apply for judicial review (“Leave Application”) against the Appeal Board’s decision dated 5 December 2019, dismissing the applicant’s appeal against the refusal of the Director of Immigration in respect of the applicant’s non-refoulement claim.

3.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, an applicant may appeal to the Court of Appeal against an order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal against the order expired on 1 May 2025.  Hence, the applicant’s intended appeal is late for around one year.

4.  After a delay of around 1 year, the applicant issued a summons (“Summons”) dated 14 May 2026 to apply for an extension of time to appeal to the Court of Appeal against the Order.

5.  At the hearing of the Summons, the applicant was brought to appear in court by a body order because the applicant is in the custody of the Immigration Department.  He is currently detained in Castle Peak Detention Centre (“CIC”).

The Law

6.  The applicable guidelines governing the discretion for deciding whether to allow an extension of time to appeal against a decision refusing leave to apply for judicial review are as follows.  The court shall have regard to: (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of success of the intended delay; 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.

Discussion

7.  In his affirmation in support of the Summons, the applicant did not give any reason for the delay.  Hence, at the hearing, I tried to understand from the applicant as to the reason for his delay.

8.  The applicant stated at the hearing that when he received the Decision, he immediately went to Shatin Court to surrender himself for “overstaying”.  As a result of his voluntary surrender, he was convicted of an offence in relation to his overstaying and was sent to prison to serve a prison sentence for 2 months.  That was around May 2025.  He said that after he completed his prison sentence, he was then transferred to the CIC, and was told that a removal order would be issued to remove him.  The applicant however could not explain the one-year delay apart from apologising for the delay and stating that he might have received a wrong advice regarding the voluntary surrender.

9.  In considering the length of the delay in this case, I consider that a delay of one year is very substantial.  The applicant shall be required to provide a very good reason.

10.  The reason for the delay the applicant provided at the hearing simply does not make sense.  It is nonsensical for him to state that he surrendered himself instead of immediately taking stops to filing an appeal against the Decision if he genuinely believed that this court had committed errors in the Decision.  I reject the applicant’s explanation.

11.  As for his proposed grounds in support of his intended appeal against the Order, again I am not able to find any valid grounds.  In his supporting affirmation as well as his submissions he made at the hearing this morning; the applicant simply repeated the circumstances of his situation. He repeated that the land dispute was a very serious problem in his home country.  He repeated the instability in his home country; and that as a Christian, he would be subjected to persecution.  All he could say was general allegations that the Appeal Board’s decision as well as the Decision were irrational and unfair.  And he stated that all the authorities in Hong Kong had failed to appreciate the fundamental problems that he faced back home.  These are not valid grounds at all.

Conclusion

12.  In the circumstances, I am not satisfied that the applicant is able to demonstrate there is a good prospect of success in his intended appeal.  Having regard to the substantial delay, the absence of any good reason for the delay as well as the absence of a good prospect of success, I therefore refuse to exercise my discretion to extend time to the applicant to serve his appeal.

13.  The Summons is therefore dismissed.