TOLENTINO GLAYZA AGSUNUD AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2062/2019

[2026] HKCFI 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2062 OF 2019

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D E C I S I O N

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1.  On 5 June 2025 I refused to extend time or to grant leave to the 1^st and 2^nd Applicants (“the Applicants”) to apply out of time for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their non-refoulement claims upon finding no good reasons for their serious delay of some 9 months with their application, that none of the grounds put forward by them reasonably arguable for their intended challenge notwithstanding the fact that the 2^nd Applicant was and still is a minor without legal representation, that there was no error of law or procedural unfairness in their process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in the Applicants’ intended application.

2.  The Applicants now by a summons issued on 3 July 2025 seeks leave to appeal against that decision out of time, as the 14-day period after the decision within which to file their appeal under Order 53 Rule 3(4) of the Rules of High Court, Cap 4A expired on 19 June 2025, and hence they were 14 days late with their intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if 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 The Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicants’ case, a delay of 14 days may still be considered as substantial and inordinate, for which the 1^st Applicant explained at the hearing of their summons that she believed that the letter containing the decision was placed in the wrong mail box of their building, and that it was much later that her neighbor brought the mail containing the decision to her, but by then it was already out of time for them to file their intended appeal.

5.  The court record shows that the decision was sent on the same day of 5 June 2025 to the Applicants’ then reported address without being returned through undelivered post, and while it is entirely possible that the letter containing the decision could indeed have been put in the wrong mail box, I found it hard to believe that her neighbor would have taken such a long time to return the mail to the Applicants if indeed it had been put in the wrong mail box, and in the absence of any further evidence to corroborate their bare assertions, I am not satisfied that the Applicants have provided a good or valid reason for their delay.

6.  More importantly, the Applicants also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in their summons or affirmation, nor was the 1^st Applicant able to do so at the hearing of their summons. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicants, I do not see any prospect of success in their intended appeal.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse to grant leave to the Applicants to appeal out of time, and dismiss their summons.