BGOYA BENARD MUGISHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 401/2021

[2026] HKCFI 3508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 401 OF 2021

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D E C I S I O N

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Background

1.  By way of summons filed on 9 April 2026 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 28 January 2026, which dismissed the applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 21 December 2020.

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 28 January 2026, the last day for the applicant to lodge an appeal was on 11 February 2026. Thus, the time for appealing against my order has 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 did not give any reason why he was late in lodging his intended appeal, nor provide any grounds of appeal. In his supporting affirmation dated 30 March 2026, the applicant attached a 1-page handwritten document with the title “THE AFFIRMATION”, which mentioned some reasons for his delay in lodging the intended appeal, but no ground of appeal was provided.

8.  At the hearing of the Summons on 4 June 2026, the applicant explained his delay by saying more or less what he stated in his said 1-page document, in that he received this court’s decision on 30 January 2026 and the appeal form on 4 February 2026 (but in his said 1-page handwritten document, he stated that he obtained the appeal form on 5 February 2026). As he had a hearing for his Habeas Corpus case on 6 February 2026, and there were many things for him to do during that week, he could not lodge the appeal then.

9.  In fact, after the hearing of his Habeas Corpus case on 6 February 2026, the applicant still had a few days to lodge the appeal before the deadline on 11 February 2026. However, the applicant explained that he was taken to Castle Peak Bay Immigration Centre on 9 February 2026 and was detained there until 4 March 2026, during which some of his belongings including the appeal form were locked up. He requested for the appeal/summons form but was unsuccessful until he was taken back to Tai Tam on 4 March 2026. It then took him more than a month to file the Summons on 9 April 2026 because he did not know what to write in the form and he needed to seek help from different people to do it. Hence, the process was very long.

10.  The explanations given by the applicant were not satisfactory, as he had indeed enough time to lodge the appeal had he been more diligent in lodging the appeal. He had the appeal form on 4 or 5 February 2026 and the deadline for appealing was only on 11 February 2026. Even after he was transferred to Castle Peak Bay Immigration Centre on 9 February 2026, I see no reason why he could not get back the appeal form and lodge the appeal before the deadline if he had made known to the immigration officer that he had an urgent appeal to make. There was also no reason why he would need to seek help from others for more than a month after he was taken back to Tai Tam on 4 March 2026 before he filed the Summons on 9 April 2026.

11.  More importantly, there is no merit of the intended appeal at all. When I asked the applicant for his grounds of the intended appeal, he first said that he did not have the opportunity to prepare and to tell me the grounds for his judicial review, as he did not have any legal assistance even though he had applied for legal aid. The applicant then reiterated some of his problems that gave rise to his non-refoulement claim and tried to produce some new evidence contained in his mobile phone.

12.  However, when the applicant appeared before me on 22 January 2026, I did give him the opportunity to elaborate on the ground that he wrote in his Form 86, namely the Torture Claims Appeal Board’s decision was substantially unfair. The applicant chose not to make any submission and asked for an adjournment, as he was waiting for the result of his legal aid application.

13.  I decided not to adjourn the case as the applicant had ample time and opportunity to apply for legal aid long before he was detained and he had in fact his own lawyer to assist him when the application for leave to apply for judicial review was filed.

14.  After his application for adjournment was refused, the applicant insisted that he did not have time to prepare his submission. Thus, the applicant did not give any ground for his intended judicial review, nor elaborate the ground stated in his Form 86, and he simply asked this court to decide. It is therefore utterly untrue that he did not have the opportunity to tell me his grounds for the intended judicial review.

15.  The reiteration of some of the background facts for his non-refoulement claim cannot assist the applicant at all, as it was for the Torture Claims Appeal Board, not this court, to make finding of facts (see Nupur Mst v Director of Immigration [2018] HKCA 524). It is also not for this court to receive new evidence (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090).

16.  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, supra).

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

18.  In the circumstances, there is no reasonable excuse for the applicant’s delay in lodging the intended appeal and there is no reasonable prospect of success in the intended appeal. I am therefore not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

19.  For reasons aforesaid, the Summons is dismissed.