MENDY BABOU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 182/2025, [2026] HKCA 186

On Appeal From [2025] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 182 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 2965 OF 2019)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court) :

1.  By a Summons filed on 9 September 2025 (“Summons”), the Applicant applies for an extension of time to appeal against the Order (“Dismissal Order”) of Deputy High Court Judge K.W. Lung (“Judge”) by which his application for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 20 September 2019 was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“Director”) to reject the Applicant’s non-refoulement claim.

2.  The Summons referred, erroneously, to another decision of the Judge dated 2 September 2025 by which the Applicant’s application for extension of time to appeal against the Dismissal Order was dismissed. The Dismissal Order was made pursuant to the Judgment dated 15 April 2025 (“Judgment”). The Summons is supported by a short affirmation of the Applicant (“Affirmation”) filed also on 9 September 2025. The Applicant lodged written submissions in support of this application on 22 September 2025.

3.  Having considered the documents, this Court is of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“RHC”).

4.  The Applicant had 14 days from the date of the Judgment (15 April 2025) to appeal against the same (see Order 53, rule 3(4) of RHC). The 14-day period expired on 29 April 2025. The Applicant filed his summons below for extension of time on 30 April 2025. He was out of time by 1 day.

5.  It is trite that in deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of success of the intended appeal, and the degree of prejudice to the other party if an extension of time is granted. The prospects of success of an intended appeal is important because the court will not grant an extension of time for a hopeless appeal: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

6.  There is nothing in the Summons, the Affirmation or the Applicant’s submissions which explains the delay in question. He offered no explanation before the Judge in the extension of time application at the lower court.

7.  In respect of the prospects of success of the Applicant’s intended appeal, the general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

8.  Further, the assessment of evidence, Country of Origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.  The Applicant has not advanced any grounds of appeal in the Summons, the Affirmation or his submissions. The Applicant’s submissions merely reiterated the factual basis of his claim. It should be noted that the same had been rejected by the Board as not credible. There is no basis to grant an extension of time to appeal.

10.  For completeness, this Court has considered carefully the Judge’s reasons for dismissing the Leave Application and is unable to see any arguable ground of appeal against the same.

11.  In the premises, the Summons is dismissed with no order as to costs.