MULI MARY MUKUI v. TORTURE CLAIMS APPEAL BOARD

HCAL 105/2020

[2025] HKCFI 4381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 105 OF 2020

____________

____________

______________

D E C I S I O N

______________

Background

1.  By way of summons dated 11 July 2025 and filed on 15 July 2025 (“the Summons”), the applicant applies for leave to appeal out of time against my order dated 24 June 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 24 June 2025, the last day for the applicant to file an appeal was on 8 July 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 and the applicant’s supporting affidavit dated 14 July 2025, as well as at the hearing of the Summons on 10 September 2025, the applicant explained that she did attempt to file her Notice of Appeal on 8 July 2025, ie the last day allowed for filing her appeal.  However, due to some issues with her documents, the Notice of Appeal was not accepted for filing. The applicant produced her Notice of Appeal and it does indicate that she paid the filing fee on 8 July 2025.

8.  Thus, I am prepared to accept that the applicant was trying to file her Notice of Appeal on the last day allowed for filing her appeal and her delay was not intentional. 

9.  However, as aforesaid, the crucial question is whether there is a reasonable prospect of success in the intended judicial review, but I find no merits of the intended appeal or the intended judicial review at all.

10.  It is not necessary for me to repeat the details of the applicant’s case here as the same were set out in the Board’s decision dated 12 December 2019, which can be viewed in the hyperlink attached to the Form CALL-1 dated 24 June 2025.

11.  The applicant failed to advance any ground for the intended appeal in the Summons.  Even though she submitted in the Summons that there were substantive merits to her underlying appeal, she did not specify what they were.  The applicant did not mention any grounds of appeal in her supporting affidavit or her Notice of Appeal.  At the hearing on 10 September 2025, when I asked the applicant for her grounds of appeal, the applicant merely said that the situation back home was still dangerous for her, her health was not good and it was not easy for her to return.

12.  For this application to be successful, the applicant must demonstrate that this court had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.  The applicant failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal or the intended judicial review.

14.  Furthermore, as discussed in the Form CALL-1, the applicant’s alleged dangerous situation was duly considered by the Board.  The finding of facts was solely within the ambit of the Board.  This court finds no reason to usurp the fact-finding power of the Board.  The applicant’s health issue was not raised before the Board and it cannot be a ground for appealing my decision at all.

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

Conclusion

16.  For reasons aforesaid, the Summons is dismissed.