MUNAF ABDUL alias ABDUL MANAF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2831/2019

[2026] HKCFI 1142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2831 OF 2019

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D E C I S I O N

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Introduction

1.  On 10 September 2025, the court sent an order together with the decision of this court in the prescribed form Call-1, (“Decision”)  ([2025] HKCFI 3978)  by ordinary post to the applicant’s address he confirmed at the hearing on 12 June 2025, (“Confirmed Address”). 

2.  In the Decision, the court dismissed the applicant’s application for leave to apply for judicial review (“Leave Application”)  against the Appeal Board’s decision dated 20 September 2019 dismissing the applicant’s appeal against a decision of the Director of Immigration dated 7 May 2018, rejecting the applicant’s non-refoulement claim. 

3.  On 20 October 2025, this court received a returned post of the order and the Decision which the court posted to the Confirmed Address.  Hence, the service of the order and the Decision was not successful. 

4.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court, the time limit for an appeal to the Court of Appeal is 14 days after the order of the court.  The deadline for the applicant to file his appeal would have been 24 September 2025.  After a delay of more than 54 days, which is around 2 months, the applicant issued a summons (“Summons”)  dated 17 November 2025 to apply for an extension of time to the Court of Appeal against the Decision. 

5.  At the hearing of the Summons, the applicant appeared in person and made submissions.

The Law

6.  The guidelines governing the discretion for an extension of time to appeal against a decision refusing leave to apply for judicial review shall apply to the present case. The Court shall have regard to (i)  the length of the delay; (ii) the reason for the delay; (iii)  the prospect of success of the intended appeal; and (iv)  the prejudice to the respondent if an extension of time were granted: 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; Re Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

7.  In his affirmation in support of the Summons, the explanation the applicant gave for the delay was that he did not get the High Court decision, his reporting officer from the Immigration Department asked about his judicial review, and so he wanted to appeal. 

8.  Since the Decision and the order posted to the applicant had been returned undelivered and I also notice the slight difference between the Confirmed Address and the address which he provided in the Summons, I therefore took time to clarify from the applicant what happened before his issuance of the summons. 

9.  The applicant stated that he had in fact lived in the same address since 2024, and he has not moved out from the Confirmed Address since the last hearing in June 2025.  I note the two addresses are almost the same. However, in the Confirmed Address, it stated, “150 Wang Toi Shan Sha” and then “Than Tsuen No. 74, Kam Tin” and the address which he gave in Summons is, instead of “Wang Toi Shan Sha Tsuen No. 74, Yuen Long”, it is stated as “Wang Toi Shan San Tsuen No. 74, Yuen Long”.

10.  I believe that there was a slight error in relation to the Confirmed Address which was initially provided by the Immigration Department.  However, the applicant had the responsibility at the hearing of the Leave Application on 12 June 2025 to check the correctness of the address before he signed and confirmed the address. He did confirm the address given by the Immigration Department in the hearing as correct. 

11.  I therefore find that the slight variance of the Confirmed Address and the actual description of the address was due partly to the fault of the Immigration Department, and partly due to the fault of the applicant in having failed to check when he signed to confirm the correctness of the Confirmed Address. 

12.  Despite the slight difference of the Confirmed Address, there had been in the past, successful posting of documents to the applicant to the Confirmed Address, the notice of hearing for the hearing on 12 June 2025 and also a letter of handing down on 1 September 2025. I believe the applicant did receive the letter of handing down sent by the court on 1 September 2025 to the Confirmed Address.

13.  Therefore, at the hearing this morning, he kept telling me that after he received the letter from the court, which I believe was the letter of handing down, he understood there would be more documents to be sent to him within 30 days and he was expecting further documents from the court. 

14.  When he did not receive anything, the applicant did not take an initiative to contact the court as to the documents he said he was expecting.  He only decided to file the Summons for an extension of time when he was arrested in Shatin Court and was told that his case was closed, (which I believe as being referred to the dismissal of the Leave Application), he did only come to the court to file the Summons. 

15.  Strictly speaking, since the posting of the Decision and the order was returned, the time limit did not start to run until the applicant actually had notice of the Decision. Since the applicant said he had not read the Decision, I asked the applicant whether he wished to read the Decision.  And I also informed the applicant that the court was prepared to briefly adjourn the hearing to enable him to read the Decision with the assistance of the interpreter. 

16.  However, the applicant said he did not wish to read because his present application was not against the Decision. He was only using other option, meaning using the Summons to enable him to stay in Hong Kong longer as his situation at home was not good.  His other option he was referring to, in fact, would enable him to stay in Hong Kong as long as possible because his life back home would be at risk. 

17.  In considering whether I should exercise my discretion to allow the extension of time, I have regard to the fact that the posting of the Decision and the order was not successful.  However, as I stated above, the reason that he had not been able to receive the court’s decision was entirely due to his own fault.  He did not take care to check the correctness of the Confirmed Address on the date of the hearing on 12 June before he signed and confirmed the correctness of the Confirmed Address. 

18.  And secondly, he had in fact received the court’s letter dated 1 September 2025 notifying him of the handing down of the Decision.  He did not take any steps to make inquiry from the court about the Decision of the court.  Had he taken these steps, he would not have been late in his intended appeal.  

19.  As the applicant stated in court, he felt he had no other choice but to file the Summons in the High Court only when he was arrested and was told that his case was “closed”. Therefore, as in his own word words, he had to use his “other option”.  He kept emphasising that the present application was not against the Decision and he was not even interested in reading the Decision in finding out the reasons for my dismissal of the  Leave Application. 

20.  Since the applicant had stated that his application was not an application against the Decision, he was unable to provide any intended grounds of appeal.  Not only do I find that the applicant shows no good prospect of success in his intended appeal, I further find that his present application is an abuse of the court process because his real motive is to play for time.  

21.  In all the circumstances and for the reasons I have just given, I am disinclined to exercise my discretion to extend the time to the applicant to serve his appeal.  The summons is therefore dismissed.