GARDIOLA JEANE LAGAC AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 896/2025

[2025] HKCFI 4460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 896 OF 2025

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D E C I S I O N

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Introduction

1.  This is the Applicants’ application by summons filed on 20 August 2025 for extension of time to appeal the order of this Court dated 17 June 2025 (the “Order”)  refusing them leave to apply for judicial review (the “leave application”)  of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office.

Discussion

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 Application is one months and twenty days out of time.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.  If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

3.  The delay of one months and twenty days in an appeal period of 14 days is substantial.  The Applicants gave no explanation for the delay.   In their Summons filed by the 1^st Applicant on behalf of herself and the 2^nd Applicant, she said “I dont agree with the judgment on June 17, 2025 by the judge, I want to appeal.  In the supporting affirmation, she said “I am late to appeal, I plead to high court to give me an extension of time.”  They did not inform the Court when they received those documents or explain the circumstances occasioning the delay. These are facts required to enable the Court to assess the reasonableness of the delay and the credibility of the explanation.  Their ground of appeal is basically that they disagree with the Court’s Order and the reasons of the decision in Form CALL-1.  These grounds are lacking in particulars and could not amount to arguable grounds of appeal.  The grounds of the intended appeal is an essential requirement in an application for extension of time to appeal. It is required to enable the Court to assess the prospect of success in the intended appeal on which the exercise of the Court’s discretion to grant leave depends.  Hence, on 26 August 2025 this Court gave them directions to file a statement or affirmation within fourteen days stating: (1)  the date when and the circumstances under which the Order sought to be appealed was first received or brought to their notice; and (2)  the grounds of her intended appeal.  They were also informed that their application for extension of time will be determined on paper 21 days after the date of the directions and that it will be refused if the directions have not been complied with by that time.  They did not respond. 

4.  As at the date of issue of this Decision, more than 21 days had lapsed.  The inference to be drawn from the Applicants’ failure to respond is that she has no reasonable explanation for the delay, no arguable grounds of appeal and lacks the will to prosecute her intended appeal.  There is no basis on which the Court may exercise its discretion to grant them extension of time.  Accordingly, their application is refused.