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HCAL 480/2019
[2026] HKCFI 4476
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 480 OF 2019
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BETWEEN
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Magno Merry Khris Fonseca |
1st Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
19 August 2026 |
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DECISION
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The application
1. In HCAL 480 of 2019, the applicant, the mother and her daughter applied for leave to apply for judicial review of the Decision dated 28 January 2019 by the Torture Claims Appeal Board (“the Board’s Decision”), which dismissed their appeal against the Director’s decision refusing their non-refoulement claims. This Court dismissed their application. For reason unknown, only the mother made the application for extension of time to appeal to the Court of Appeal in this application. The daughter is not a party. I shall call the mother as the applicant in this application.
2. The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Board. Having considered her evidence, the Board rejected her appeal and affirmed the Director’s Decision.
3. The applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.
4. By Form CALL-1 dated 6 September 2022 (“the Court’s decision”), the Court dismissed her application as there is no realistic prospect of success in her intended application.
5. The Court’s decision was sent to the applicant on 6 September 2022 at her last known address without being returned from the Post Office. She is deemed to receive the Court’s decision[1].
6. The time for filing the notice of appeal expired on 20 September 2022[2].
7. By summons filed on 2 July 2026, the applicant applied for appeal against the Court’s decision out of time. She is late for more than 3 years and 9 months.
8. In her affirmation in support of her application, the applicant said that she needed extension of time, without giving any explanation for her delay.
Discussion
9. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, I decide to determine this application on paper without an oral hearing[3].
10. The Court will consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of her case.
11. In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:
“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”
12. The applicant’s claim was rejected by the Director because she had repeatedly refused to submit her reasons in support of her claim. She appealed to the Board. However, she was late to file her notice of appeal.
13. Having considered the circumstances and the applicant’s explanation, the Board refused to extend time to file her notice of appeal. In practical effect, her appeal was dismissed by the Board. The details are set out in Form CALL-1 of HCAL 480 of 2019 [2022] HKCFI 2704.
14. The reason under paragraph 8 is not valid for her delay. The delay is serious and the applicant has not given any explanation for her delay.
15. There is no valid reason from the applicant to challenge the Board’s Decision or this Court’s decision.
16. In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. The applicant had not filed any notice of change of address for service to notify of any changes in his address. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. He was therefore deemed to have received the Court’s decision on 1 April 2022. ”
[2] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court
2. O,53, r.4
(4) Where an application for leave is refused by a judge or granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.
Reckoning periods of time (O. 3, r. 2)
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
(35 of 1998 s. 5; 18 of 2016 s. 5)
[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:
“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”
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