BALU MURUGAVEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 388/2021

[2026] HKCFI 3632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 388 OF 2021

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D E C I S I O N

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Background

1.  By way of summons filed on 11 May 2026 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 25 March 2026, which dismissed the applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 10 March 2021.

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 25 March 2026, the last day for the applicant to lodge an appeal was on 8 April 2026. Thus, the time for appealing against my order has 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 11 May 2026, the applicant explained the delay in appealing by saying that he did not receive the decision of the court and he came to know that his leave application for judicial review was dismissed from the Immigration Department but it was out of time to appeal then.

8.  At the hearing of the Summons on 11 June 2026, the applicant explained his delay in appealing by saying that he received the letter enclosing this court’s decision at his address about a month ago, ie in May 2026. The letter was in the mail box of his address but the mail box was shared by 5 persons. He did not check the mail box for over a month but was informed by the other people that there was a letter for him in the mail box and then he received the letter.

9.  The applicant’s explanations for his delay in appealing are not satisfactory, as the explanation given by him in the Summons and his affirmation was completely different from the explanation given at the hearing.

10.  Moreover, there is no merit of the intended appeal at all. The applicant did not give any ground of appeal in the Summons, nor in his supporting affirmation. What he said in the Summons and his affirmation were just that he had severe problem, his enemies were still looking for him, if he returned to his country, he would be killed by his enemies, and his life was still in danger in his home country. When I asked the applicant for his grounds of the intended appeal at the hearing of the Summons, he merely said that he had problem in his country and he could not go back there.

11.  What the applicant said in the Summons and his affirmation, as well as at the hearing, cannot amount to any valid ground for his intended appeal against my decision, nor for the intended judicial review.

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

14.  In the circumstances, there is no reasonable explanation for his delay in appealing and there is no reasonable prospect of success in the intended appeal. Thus, I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

15.  For reasons aforesaid, the Summons is dismissed.