MUHAMMAD QASIM v. TORTURE CLAIMS APPEAL BOARD

HCAL 93/2020

[2025] HKCFI 1722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 93 OF 2020

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D E C I S I O N

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Background

1.  By way of summons filed on 2 April 2025 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 18 March 2025, which dismissed the applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 23 December 2019.

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 18 March 2025, the last day for the applicant to lodge an appeal was on 1 April 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, the applicant alleged that he did not receive my order within a reasonable period of time allowing him to appeal within time. In his supporting affirmation dated 2 April 2025, the applicant alleged that he did not receive my order within 14 days and he should be given a reasonable opportunity to present his case.

8.  However, at the hearing of the Summons on 22 April 2025, the applicant admitted to this court that he did receive my order within 14 days from the date of the decision, but he was late in lodging the appeal because he thought that Saturdays and Sundays were not included in the computation of time for lodging his appeal.

9.  The applicant’s understanding was wrong in law because Saturdays and Sundays would not be counted in the computation of time only when the prescribed period does not exceed 7 days (see section 71(1A)(c) of the Interpretation and General Clauses Ordinance, Cap 1). However, the prescribed period in question is 14 days and hence Saturdays and Sundays are counted.

10.  Ignorance of the law is not generally an excuse for delay (see Chen Cheryl Deanna v Chen Pak Yin Stella, HCMP 1061/2017, dated 4 August 2017). Nevertheless, since the delay in the present case is a short one, the arguability of the intended appeal is an important consideration (see Re Gurung Min Bahadur, supra). Thus, I am not going to take issue on the delay or the reason for the delay, but will consider the merits of the intended appeal or the intended judicial review.

11.  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 23 December 2019, which can be viewed in the hyperlink attached to the Form CALL-1 dated 18 March 2025. I have also briefly summarized the applicant’s case in the Form CALL-1.

12.  However, the applicant failed to advance any ground for the intended appeal in the Summons or his supporting affirmation. At the hearing on 22 April 2025, the applicant merely asserted that he has been in Hong Kong for a long time, and his family and children are all in Hong Kong. These matters cannot amount to any valid ground for the intended appeal or the intended judicial review at all.

13.  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).

14.  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.

15.  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 nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

16.  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, even though the delay was a short one.

Conclusion

17.  For reasons aforesaid, the Summons is dismissed.