HOSSAIN SHEIKH AFJAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1867/2019

[2026] HKCFI 4016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1867 OF 2019

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BETWEEN

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D E C I S I O N

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1.  On 29 August 2024 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal regarding 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 14 April 2026 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A ended on 12 September 2024, and hence he was some 1 year and 7 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 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 1 year and 7 months must be considered as extremely substantial and inordinate, and in his affirmation the Applicant explained that sometimes earlier in September 2022 he had had a serious accident when both of his legs were seriously injured that he was hospitalized, and upon his discharge from hospital that he has since been detained by the Immigration Department that he was not aware of the court’s decision until much later but by then he was already out of time for his intended appeal.

5.  The court record shows that the decision was sent on the same day of 29 August 2024 to his then reported address without being returned through undelivered post, and upon subsequently being informed by the Immigration Department that the decision was re-sent on 11 September 2024 to the Applicant then in detention at Castle Peak Bay Immigration Centre (“CIC”), and according to the Applicant’s said affirmation as well as those attached police and medical reports, it seems that on 26 September 2022 while trying to escape from police’s pursuit for having earlier absconded from reporting to the Immigration Department on his recognizance, the Applicant jumped from a height and injured both his legs from the fall and was therefore hospitalized, and upon his discharge he was then being detained at CIC, and hence when the decision was accordingly re-sent to him on 11 September 2024 at CIC, the Applicant would still have been late for 1 ½ years with his intended appeal, and with assistance available from the stationed welfare officers, I am unable to see any justification for his such serious delay with his intended appeal.

6.  More importantly, nor has the Applicant put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may be reasonably arguable that the decision was unfair or unreasonable either in his summons or his affirmation, 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 either.

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 the Applicant’s summons.