MD NOYAN UDDIN ZOYADDAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1860/2019

[2026] HKCFI 2294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1860 OF 2019

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D E C I S I O N

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Introduction

1.  By an order (“Order”)  dated 18 March 2025, the court dismissed the applicant’s application for leave to apply for judicial review (“Leave Application”)  against a decision of the Appeal Board dated 20 June 2019.  The court’s decision (“Decision”)  was made after a scheduled hearing dated 6 February 2025 from which the applicant was absent.

2.  On the date of the hearing on 6 February, the court received no return post of the notice of hearing to the applicant undelivered.  The notice of hearing was sent to an undress (“Updated Address”), which was an address at 5 Kuk Ting Street, Yuen Long updated by the Immigration Department on 4 September 2024.

3.  The Decision and the Order sent to the Updated Address had not been returned.  However, after the posting of the Decision on 18 March 2025, the court received the return post of the notice of hearing on 22 July 2025.

4.  Pursuant to Order 53, rule 3(4), of the Rules of the High Court, the time limit for an appeal to the Court of Appeal is 14 days after the order of the court.  The deadline for the applicant to file his appeal expired on 2 April 2025.

5.  After a delay for about 8 months, the applicant issued a summons dated 5 January 2026 (“Summons”)  to apply for an extension of time to appeal to the Court of Appeal against the court’s order. At the hearing of the Summons, the applicant appeared in person and made submissions.

The Law

6.  The applicable guidelines governing the discretion of an extension of time to appeal against a decision refusing leave to apply for judicial review are as follows.  The court shall have regard to: (1)  the length of the delay; (2)  the reason for the delay; (3)  the prospect of success of the intended appeal; and (4)  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 Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

Discussion

7.  In the applicant’s affirmation in support of the Summons, the applicant stated that he did not receive the Decision because his address had been changed, and he did not know the court procedure.

8.  Since the applicant stated that he had changed his address, this court, therefore asked about his address.

9.  However, the applicant was not able to provide further details.  All he told the court was that he could not remember where he stayed at the time of the hearing in February 2025.  All he stated was that the Updated Address was an address of his friend for correspondence purpose and he did not reside there.

10.  When the court asked him for more details as to when he lived in his present address and when he moved out, the applicant was not able to provide any information. All he told the court was that he “cannot remember”.

11.  He said he also did not receive the Decision. I then asked him how he came to know of the Decision. He said he asked a fellow non-refoulement Pakistani claimant who made an on-line search check for the status of his application.

12.  The applicant was then told that his Leave Application had been dismissed. However, he did not read the Decision. He said as soon as he knew of the outcome of the Leave Application from his fellow non-refoulement claimant friend, he went to the High Court the next day to file the Summons.

13.  In considering the length of delay, I believe that a delay of more than 8 months is substantial. Good reason shall be required.  However, rather than providing good reason, the applicant was unable to give me any satisfactory explanation for the delay.

14.  He was not able to confirm where he lived at the material time. Since the Updated Address was the correspondence address, the applicant should have no problem of receiving mails. Since the notice of hearing and the Order were not returned undelivered, the delivery of the service was regular.

Conclusion

15.  In the present case, I find it most disconcerting that the applicant has sought to appeal against the Decision without even having read it.  I asked him if he had not read it, why he had wanted to appeal.  He said that if he did not appeal, he was worried that he would be detained by the Immigration Department.

16.  In the circumstances, I believe that the intended appeal is not an authentic challenge to the Decision. His real motive is to avoid any possibility of detention.

17.  As for the prospect of success, since the applicant has not even read the Decision, he is not able to provide any proposed grounds of appeal, either in his supporting affirmation or at the hearing.  Hence, I am not satisfied that there is a good prospect of success in the applicant’s intended appeal.

18.  Whether to extend time to appeal is the discretion of the court.  Having anxiously examined the facts and evidence of this case, I am disinclined to exercise my discretion to extend the time to the applicant to serve his appeal. The Summons is therefore dismissed.