RE MD IMRAN

HCAL 988/2018

[2019] HKCFI 2492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 988 OF 2018

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DECISION

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1.  On 2 August 2019 Deputy High Court Judge Josiah Lam refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding no good reason for his serious delay of more than three years with his intended application, that none of the grounds put forward by him 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 decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 16 August 2019 seeks leave to appeal against that decision refusing to extend time for his late application for judicial review which was interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and 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 any civil cause or matter unless leave to appeal has been granted.

3.  In considering whether to grant leave to appeal, 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 did not in his summons or affirmation provide any draft or proposed grounds of appeal, but in his affirmation he made certain criticisms of the Court’s decision which can be summarized as follows:

  (a)  that the Court failed to find that the Board had overlooked the fact that the Applicant had been detained for 66 days in 2014 as reason for his delay;

  (b)  that the Court found that prejudice would be caused to the putative respondent without taking into account that prejudice would also be caused to the Applicant by not allowing his application; and

  (c)  that the Court failed to make clear to the Applicant as to what he could have done to seek appeal against the refusal of his intended application.

6.  The Applicant’s complaint under (a) is factually incorrect, as that was not the reason given by him for his delay in filing his notice of appeal to the Board, which was as stated in the Board’s decision that he claimed to have been sick and that his leg was having problem, but which the Board found not acceptable for his substantial delay in the absence of any medical evidence in its decision [2], which the Board was in my view entitled to do so, and which even if true would not in my view assist or advance the Applicant’s case, as the Board did go on to find that in any event that his non-refoulement claim, which was based on threats from his girlfriend’s family, was a private personal dispute without official involvement that state protection and reasonable internal relocation alternatives within his home country of India were available that his claim for non-refoulement protection in Hong Kong was found to have failed on all applicable grounds.  As such I do not find any basis or merit in this complaint of the Applicant.

7.  For the same reasons I do not find his remaining grounds or complaints reasonably arguable, or that there is any reasonable prospect of success in his intended appeal, nor do I find any other reason in the interests of justice that his appeal should be heard.      

8.  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.