ANDRI RIAWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1938/2019

[2025] HKCFI 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1938 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 10 January 2025 (the “Summons”) seeking leave to appeal the order of this Court dated 9 December 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 10 January 2025 when the Summons was filed, he was late by eighteen days. Extension of time to appeal is required.

3.  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 the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Length of delay and explanation for the delay

4.  A delay of eighteen days is substantial in the context of a fourteen days’ period of appeal. A reasonable explanation for the delay is called for. In his Summons, the Applicant said:

“ I got the High Court judgment on 9/12/2024. I could not arrange money. So I failed to submit my application. Please consider one day only.”

5.  The Court understands from his Summons that he needs money to appeal or to file his appeal, that he received the Order on 9 December 2024 and that he was only one day late in applying. As a matter of fact, an applicant need not pay any court fee to file an appeal. Since he admitted receiving the Order on the date of posting of the Order, ie 9 December 2024 and the period of appeal is fourteen days, his application is eighteen days out of time. His explanation in his Summons could not be a reasonable explanation. In his supporting affirmation, he said he has a child in Hong Kong and his life will be in danger if he is refouled to his home country. This only a assertion of fact. It could not be an arguable ground of appeal.

6.  To assist him to properly present his application for extension of time, the Court gave him specific directions on 16 January 2025 to file an affirmation or statement within 14 days setting out the date when he received the Order, his explanation for taking 32 days in applying for appeal and the grounds of the intended appeal. On 21 January 2025, he filed an affirmation repeating that his life is in danger because he had a fight with his uncle about inheritance. He did not confirm when he received the Order and gave no explanation why it took him 32 days to apply for appeal. The Applicant was certainly mistaken when he claimed he was only one day late. He may even be mistaken about the date when he received the Order. The information is required to enable this Court to assess the length of the delay and the reasonableness of his explanation for the delay. Without the information, this Court could not assess the reasonableness of his explanation.

Prospect of success in the intended appeal

7.  Apart from the explanation for the delay, the most important consideration whether to allow extension of time is the prospect of success of the intended appeal. Despite the Court’s specific direction, the Applicant did not provide the grounds of the intended appeal to enable the Court to make an assessment. Insofar as his affirmation is taken as the grounds of his intended appeal, it only amounted to a challenge against the finding of fact in the Board’s Decision of which is the subject matter of his leave application. The finding of fact is solely a matter for the Board which this Court may not interfere with save for errors of law, procedural unfairness or irrationality in the Decision. He has not put forward any grounds, not even assertion, as to what is wrong with this Court’s decision refusing him leave to apply for judicial review. This Court could only assume he has no arguable grounds of appeal which have any prospect of success.

Conclusion

8.  In view of the conclusions reached above, there is no need to consider the issue of prejudice to the respondent if extension of time is granted. As the Applicant has no reasonable explanation for the delay and has demonstrated no prospect of success in the intended appeal, his application for extension of time to appeal is refused.