RE MUTHAMBE KADIR ALBERTO

CAMP 100/2025, [2026] HKCA 298

On Appeal From [2025] HKCFI 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 100 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2475 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 15 May 2025 ([2025] HKCFI 1089) (“the EOT Decision”), refusing to grant extension of time to the applicant to appeal against the Judge’s earlier decision dated 11 February 2025 ([2025] HKCFI 297) (“the Leave Decision”).

2.  By the Leave Decision, the Judge dismissed his application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 26 July 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration dated 11 September 2018, refusing his non‑refoulement claim.

3.  The applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [4] ‑ [10] of the Leave Decision.  The Judge has set out his reasons for refusing the Leave Application: see [11] ‑ [19] of the Leave Decision.  The Judge has also set out in detail his reasons for refusing the applicant’s application for extension of time to appeal: see [3] ‑ [15] of the EOT Decision. We will not repeat those details herein.

4.  By the Summons filed on 26 May 2025, the applicant stated:

“I don’t agree with the Judgment. Please give me a chance to appeal against the decision. The decision is unreasonable. KW Lung on 15 May 2025.” (sic)

5.  By the supporting affirmation filed on 26 May 2025, the applicant merely stated that he was late in taking out his appeal.  No reason as to his delay was provided.

6.  The applicant further lodged his written submissions on 9 June 2025.  In those submissions, he reiterated the factual basis of his non-refoulement claim and asserted that he could not return to his home country as his life would be in danger.

7.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court (Cap 4A) (“the RHC”).

Discussion

8.  Following the approach this court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

10.  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: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

12.  As noted by the Judge at [6] of the EOT Decision, the applicant first applied for extension of time to appeal before the Judge by way of a summons filed on 5 March 2025.  By then, he was late for eight days in taking out his application.[1]  He failed to give any reason, let alone good reason, to justify his delay.

13.  More importantly, his intended appeal has no substance.  At the outset, his assertions are all general, vague and bare which are not proper grounds of appeal.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he failed to identify any error with specific particulars against the Leave Decision.  Accordingly, his assertions are not valid grounds of appeal.

14.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

15.  The reapplication for extension of time to appeal is refused, and the applicant’s summons taken out on 26 May 2025 is dismissed.