DEWEY ALICE SITO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 569/2019

[2025] HKCFI 3993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 569 OF 2019

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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 28 July 2025 for extension of time to appeal the order of this Court dated 26 September 2024 (the “Order”)  refusing her 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 nine months and eighteen 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 more than nine and half months in an appeal period of 14 days is very substantial.  The Applicant’s explanation for the delay as stated in her Summons is that she received the Order and Form CALL-1 late.  She did not elaborate.  She did not inform the Court when she 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.  Her allegation that she received the Order and Form CALL-1 late is hardly credible on reasonable for such a long period of delay.  Her grounds of appeal are basically that she disagrees 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 7 August 2025 the Court gave her directions to file a statement or affirmation within fourteen days stating, inter alia, the date when and the circumstances under which the Order was received and the grounds of her intended appeal.  She 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 Applicant’s 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 her extension of time. Accordingly, her application is refused.