RE BHUIYAN MOHAMMAD MOMINUL HOQUE

HCAL 77/2018 and
HCAL 919/2018
(Consolidated)

[2019] HKCFI 2490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 77 OF 2018

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 919 OF 2018

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__________

(Consolidated)

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DECISION

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1.  On 19 July 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”), and also refused to extend time for his late application to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim, upon finding no good reason for his delay nor any merit in his intended application as none of the grounds put forward by him was reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 31 July 2019 seeks leave to appeal against my refusal to extend time to his late application to apply for judicial review of the Board’s decision, which was considered as interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and for which section 14AA of the High Court Ordinance, Cap 4 provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in nay civil cause or matter unless leave to appeal has been granted. 

3.  In considering whether to grant leave to appeal against interlocutory judgment or order, section 14AA(4) provides that leave shall not be granted unless the Court hearing the application for leave is satisfied that:

   (a)   the appeal has a reasonable prospect of success; or

   (b)   there is some other reason in the interests of justice why the appeal should be heard. 

4.  The threshold test for reasonable prospect of success was given by Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 when her Ladyship stated [17]:

“ The section requires that the court be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard before granting leave. Reasonable prospects of success involve the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

5.  In the Applicant’s case, he has not provided any draft or proposed grounds of appeal, but in his five-page written submissions attached to his summons, he cited procedural unfairness and failure to apply high standards of fairness in the determination of his non-refoulement claim by the Board being the primary decision-maker instead of identifying with sufficient particularity any error in the Court’s decision in assessing the Board’s decision, and that at the hearing of his summons when asked to elaborate on his reasons or grounds of appeal, he merely repeated his claim that problems still exist that he cannot yet go back to his home country.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any reasonable prospect of success in his intended appeal, nor do I find any other reason in the interest of justice why the appeal should be heard.  

6.  In the premises, it would be futile to grant leave for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal, and dismiss his summons.