MAHMOOD ALAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1671/2020

[2026] HKCFI 2917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1671 OF 2020

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D E C I S I O N

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1.  On 26 September 2023, I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 4 February 2025 (but somehow was only recently brought to the court’s attention) seeks leave to appeal against that decision out of time, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 10 October 2023, and hence he was more than 1 year and 3 months late with his intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (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 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of more than 1 year and 3 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that he has been suffering from various medical issues including HIV infection, tuberculosis lymphadenitis, and syphilis since 2013, and attached a medical report with various appointments for medical examination as recent as March 2025 in support of his assertions.

5.  The court record shows that the decision was sent on the same day of 26 September 2023 to the Applicant’s then reported address which is the same as stated in his present application and without being returned through undelivered post, and while his medical conditions indeed appear to be corroborated by the submitted medical evidence, it is also of note that his medical report by Princess Margret Hospital dated 9 February 2022 did not appear to reveal any serious impact on him either physically or mentally so as to prevent him from filing his intended appeal within time, as it was stated in the report as follows:

“His latest CD4 count was 456 cells/uL on 10/1/2022. The blood test also showed good HIV viral suppression. Clinically he was stable during the medical follow up in our clinic on 26/1/2022. Given the stable clinical condition, it is anticipated that his life expectancy would not be dramatically reduced.”

6.  More importantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for leave to appeal out of time, and dismiss his summons.