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

HCAL 3737/2019

[2025] HKCFI 3706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3737 OF 2019

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D E C I S I O N

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Introduction

1.  The Applicant is a citizen of Bangladesh. He entered Hong Kong illegally by boat on 25 February 2014. He surrendered to the Immigration Department on 4 March 2014.

2.  The Applicant filed the non-refoulement claim on 12 March 2014. The claim was assessed by the Director of Immigration (the “Director”) on all applicable grounds, including risk of torture under Part VIIC of the Immigration Ordinance (Cap. 115), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBOR”) and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

3.  By the decision dated 22 October 2015, the Director rejected the claim.

4.  The Applicant then challenged the decision before the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”). By the decision dated 20 January 2017, the Board dismissed the appeal and confirmed the decision of the Director below.

5.  By the letter dated 21 March 2017, the Applicant was invited by the Director to submit additional facts relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under HKBOR, including right to life under Article 2.

6.  The Applicant submitted additional information in support of his claim accordingly on 5 April 2017.

7.  By the decision of the Director dated 11 May 2017 (the “Director’s Decision”), the Director rejected the claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the HKBOR, including the right to life under Article 2.

8.  The Applicant then appealed against the Director’s Decision before the Board. By the decision dated 5 December 2019 (the “Board’s Decision”), the Board dismissed the appeal and confirmed the Director’s Decision.

9.  By Form 86 filed on 16 December 2019, the Applicant applied for leave to apply for judicial review against the Board’s Decision. A hearing took place on 10 March 2025 and the Applicant attended in person. By the decision dated 16 June 2025 ([2025] HKCFI 2479) (the “Court Decision”), the court dismissed the application on the ground that the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.

10.  By the Summons filed on 8 July 2025, the Applicant applied for an extension of time to appeal against the Court Decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of the High Court had expired (the “Application”).

11.  The Application was heard before me on 21 July 2025 (the “Hearing”). The Applicant attended the Hearing in person. The Applicant said he did not receive the Court Decision within the 14-day period. He said he checked the mailbox every day and he only received the Court Decision on 4 July 2025. The Applicant indicated that he had nothing else to say at the Hearing.

Discussion

12.  In considering whether to extend the time to appeal, it is trite that the court will take into account: (1) the length of the delay; (2) the reason(s) for the delay; (3) the prospect of the intended appeal; and (4) the degree of prejudice to the other party if an extension of time is granted. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued. (see Re Mushtaq Imran Ali [2025] HKCA 705, at §§16-17)

13.  In the present case, there was delay of about a week. In the Summons, the Applicant stated that he was late because he was not aware of the time bar of the appeal at the time. In the supporting Affirmation, the Applicant claimed that he did not know what he should do so he was late in filing the appeal. However, at the Hearing, the Applicant changed his explanation and claimed that he checked his mailbox every day and he only received the Court Decision on 4 July 2025. The explanation given on oath in the supporting Affirmation is inconsistent with the explanation given by the Applicant at the Hearing. I accordingly do not accept the explanation provided by the Applicant at the Hearing. However, given the delay was not substantial, I am prepared to grant the indulgence if there is merit in the intended appeal.

14.  In the Summons and in the supporting Affirmation, no grounds of appeal have been provided. The Applicant had also failed to state the grounds of the intended appeal at the Hearing.

15.  I have considered the Court Decision together with the Board’s Decision in detail. I note that the Court had addressed all the complaints raised against the Board’s Decision in §§7-16 of the Court Decision. I do not see any errors of law, procedural unfairness or irrationality in the Court Decision. Neither has the Applicant made any such allegations. Accordingly, I fail to see any prospect of success in the intended appeal.

Conclusion

16.  As there is no prospect of success in the appeal, I refuse to extend the time for the appeal, and the Application is hereby dismissed.