TAMANG AMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 176/2023

[2026] HKCFI 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 176 OF 2023

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D E C I S I O N

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1.  On 22 May 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 21 May 2025 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 5 June 2023, and hence he was more than 1 year 11 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 almost 2 years must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that he had all along been detained at the Castle Peak Bay Immigration Centre (“CIC”) until February 2023 when he was released but without any fixed abode by staying with friends at various addresses, and hence he never received the decision in the mail until much later that he was so informed by his immigration officer when he reported on his recognizance, but by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day of 22 May 2023, which was some 3 months after his release from CIC, to the Applicant’s then reported address without being returned through undelivered post, and as it was his duty to keep the authorities informed and updated both his residential and correspondence address, and in the absence of any further evidence to corroborate his bare assertion of not receiving the decision in the mail, I am not satisfied that the Applicant has provided any good or valid reason for his such serious delay.

6.  As for his intended appeal against the Court’s decision, the Applicant stated in his supporting affirmation as follows:

“The decision made by the Deputy High Court Judge Bruno Chan was reached unfairly, as I was not given an opportunity to clarify my case and situation in my country. Moreover, it is not sufficient that I was a litigant in person, illiterate, and unrepresented, thereby making me unaware of the rules regarding the time limit. I did not receive any correspondence from the Court regarding my Judicial Review being refused, and I disagree with the court’s decision. I would like to inform you that I fear I will be killed or harmed if I return to my country. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

7.  However, these are just bare assertions of the Applicant without any relevant or necessary details or particulars or elaboration as to how the decision was reached unfairly, nor was he able to do so at the hearing of his present application other than just repeating his claim as before that he still has the same problem in his home country that he cannot return.

8.  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.

9.  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 to grant leave to the Applicant to appeal out of time, and dismiss his summons.