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

HCAL 171/2020

[2026] HKCFI 2955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 171 OF 2020

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BETWEEN

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D E C I S I O N

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1.  By summons (“the Summons”) filed on 8 July 2025, the Applicant seeks leave to appeal, out of time, against this Court’s decision dated 23 May 2025 (“the Decision”), whereby his application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 10 September 2019, refusing to re-open his claim for non-refoulement protection on the basis of cruel, inhuman or degrading treatment or punishment (CIDTP) (“the Director’s Decision”), was dismissed.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review 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. The Applicant is therefore late in taking out the Summons by 32 days.

3.  In determining whether to extend time for appealing a refusal of leave, the court will consider: (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted (see Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office CAMP 64/2020 [2020] HKCA 844 at §10).

4.  Given that the statutory period for lodging an appeal is 14 days, the present delay is not negligible. However, no explanation whatsoever has been proffered by the Applicant for such delay.

5.  The next consideration is, most importantly, the merits of the intended appeal. In the present context, the Court will not exercise its discretion to extend time where the proposed appeal is, on its face, devoid of merit (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).

6.  The Applicant has failed to disclose any arguable ground upon which the appeal could reasonably succeed. His intended challenge is directed against the Director’s Decision of 10 September 2019. It is well-established that the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision is thereby superseded by that of the Board. In such circumstances, it is simply not open to the Applicant to challenge the Director’s decision by way of judicial review (Re Moshin Ali CACV 54/2018 [2018] HKCA 549). In any event, the Applicant has not demonstrated any proper or valid public law grounds upon which the Board’s decision, disallowing the late filing of the Notice of Appeal against the Director’s Decision, could be impugned.

7.  The absence of merit in an intended appeal weighs decisively against the grant of an extension of time. To allow the Applicant to proceed with a challenge that is plainly without merit would serve only to prolong the proceedings unnecessarily, prejudice the proper administration of the refoulement process, and undermine the interests of the proposed respondent.

8.  Accordingly, the Summons for extension of time to appeal to the Court of Appeal is dismissed.