RE EZEABARA CHINEDU

HCAL 605/2018

[2019] HKCFI 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 605 OF 2018

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D E C I S I O N

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1.  On 21 June 2019 I refused to extend time for the applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding that there was no good reason for his 7 ½ months’ delay with his application, that 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 Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.  The applicant now by a summons dated 4 July 2019 seeks leave to appeal against that decision which is 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 stipulates 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, subsection (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 that 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 involves the notion that the prospects of success must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

5.  In the applicant’s case, no draft or proposed grounds of appeal was given in his summons or at the hearing, and in his supporting affirmationhe merely repeated his claim that his life would still be in danger in his home country, and that he is now married in Hong Kong with a family and a child to look after in here that he does not want to leave.  As such and in the absence of any error in the decision being identified by the applicant, I am not satisfied that there is any reasonable prospect of success in his intended appeal, nor is there any other reason in the interests 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 and dismiss the applicant’s summons.