MUHAMMAD ASHFAQ v. TORTURE CLAIMS APPEAL BOARD

HCAL 2116/2025

[2026] HKCFI 855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2116 OF 2025

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D E C I S I O N

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Background

1.  By way of summons filed on 5 December 2025 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 11 November 2025, which dismissed the applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 16 July 2025.

2.  Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave 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”.

3.  In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4.  As my order was made on 11 November 2025, the last day for the applicant to lodge an appeal was on 25 November 2025. The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

5.  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 (see Jagg Singh v Torture Claims Appeal Board and another [2020] HKCA 844).

6.  However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike [2019] HKCA 702).

Discussion

7.  In the Summons, the applicant stated that he was not satisfied with my decision, as he believed that my decision was unreasonable and unfair. In his supporting affirmation dated 25 November 2025, the applicant attached a document with the title “Grounds to Sought Relif”, in which he mentioned some grounds for his intended appeal. However, the applicant did not give any reason why he was late in lodging his intended appeal.

8.  At the hearing of the Summons on 27 January 2026, the applicant at first claimed that he was not appealing against my decision and he just wanted to produce proof to me for my reconsideration. It seemed that the applicant was not aware that he was applying for an extension of time to appeal. I therefore explained to the applicant that I had already made the decision and if he needed to go further, he had to apply for an extension of time to appeal against my decision to the Court of Appeal. The applicant then said that he was imprisoned and did not know about the time limit. He was only informed by another inmate about the time limit of 14 days and he then applied for an extension of time by the Summons.

9.  When I asked the applicant for his grounds of the intended appeal, he said that he did not have any documentary proof then, but now he received some documents from a person from Pakistan and he would like to submit the documents to the court for consideration. I then explained to the applicant that it was not for the court to receive new evidence at this stage.

10.  The applicant then confirmed that he wanted to rely on the grounds stated in the document attached to his supporting affirmation. When I asked the applicant to elaborate on the grounds, he simply said that he needed more time to collect evidence for his judicial review and he now had some supporting documents to prove his case.

11.  The delay in the present case was not for long, but there was no valid explanation given by the applicant for his delay. Ignorance of the time limit cannot be an excuse. His imprisonment would not have prevented him from lodging the intended appeal, as the Correctional Services Department could facilitate him to lodge the intended appeal if he so requested.

12.  Thus, there is simply no valid reason for the applicant’s delay in lodging the intended appeal.

13.  The grounds of appeal as advanced by the applicant are also not valid. First of all, the bare allegation in the Summons that my decision was unreasonable and unfair without any particulars cannot be a valid ground to challenge my decision.

14.  As to the grounds stated in the said document attached to the applicant’s supporting affirmation, they can be summarised as follows:-

(1)  The applicant was unrepresented and did not have access to any legal advice.

(2)  I wrongly listened or heard about his evidence and proof. He was the one in the “video footage” being tortured and the picture showed that he was working for “JKLF Libration Party”. He filed a case against his enemies but due to their strong connection and money power, and corruption in his state, nothing was done. The applicant asked me to check the global news about the protest going on in Kashmir, which was the reference he was giving to his situation and his claim related.

(3)  The Board and the Director were wrong in not giving him sufficient time to establish his claim and to attach his supporting document and evidence as he was in prison and going through a hard time. I was wrong in ignoring the main factor and just relied on their decisions, which was unfair.

(4)  I failed to weigh his request to the Board and the Director that he was in prison and could not afford to give the evidence and proof related to his claim and he was just ignored.

15.  In Ground (1) as summarised above, the Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). The Duty Lawyer Service had already assisted the applicant at the initial stage of his non-refoulement claim. He could not expect to have free legal service at the subsequent proceedings as of right. Thus, there is no substance in this allegation.

16.  As to Ground (2), I had already explained to the applicant at the oral hearing of the leave application that it was not permissible for him to submit new evidence to this court (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090). Thus, the applicant could not rely on any materials not placed before the Board as a ground for his intended judicial review.

17.  In paragraph 26 of my decision in Form CALL-1, I only mentioned that if the “FIR, torture picture and video footage” were not related to the applicant, the general situation of violence in Pakistan was irrelevant. This was just an additional comment, as I would not allow any new evidence to be submitted as aforesaid. Thus, it does not matter whether the applicant appeared in the video footage and picture or not. The main point is that the applicant did not submit the alleged “FIR, torture picture and video footage” to the Torture Claims Appeal Board and cannot rely on them now.

18.  In Ground (3), the applicant alleged that he was not given sufficient time to establish his claim and to attach his supporting document and evidence. However, as can be seen from paragraph 10 of the Board’s Decision, the applicant confirmed with the Board at the start of the hearing before the Board that he had no additional information or grounds to add in the appeal and he did not need further time to prepare for the hearing.

19.  Thus, it is untrue that the applicant was not given sufficient time to establish his claim and to attach his supporting document and evidence. It was the applicant himself confirming with the Board that he had no additional information or grounds to add and he did not need further time to prepare. If he really had difficulty in obtaining evidence to submit to the Board because he was imprisoned, he could have informed the Board about it and sought for an adjournment from the Board. Thus, Ground (3) is simply unfounded.

20.  Likewise, Ground (4) is totally baseless as the applicant did not make any request to the Board to give him time to collect evidence and proof related to his claim at all. As aforesaid, the applicant himself confirmed with the Board that he had no additional information or grounds to add and did not need further time to prepare for the hearing.

21.  Thus, none of the grounds advanced by the applicant in the said document amounts to any valid ground for the intended appeal or the intended judicial review.

22.  The arguability of the intended appeal is an important consideration for such an application for extension of time to appeal (see Re Gurung Min Bahadur, supra), but the applicant provided no valid ground for his intended appeal at all. What he said at the hearing of the Summons cannot amount to any valid ground for his intended appeal against my decision nor for the intended judicial review, as it is also not for the court to receive new evidence at this stage.

23.  In the circumstances, there is no reasonable prospect of success in the intended appeal and I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

24.  For reasons aforesaid, the Summons is dismissed.