RE SHAIKH QUTUBUDDIN

HCAL 358/2018

[2020] HKCFI 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 358 OF 2018

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D E C I S I O N

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1.  On 22 October 2019 I refused to extend time to 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 non-refoulement claim upon finding that there was no good reason for his serious delay of almost 8 months with his 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 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 issued on 24 October 2019 seeks leave to appeal against that decision 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) of the Ordinance 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 interest of justice why the appeal should be heard.   

4.  The threshold test for reasonable prospect of success was given by Hon Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 at [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 succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

5.  In the present case, the Applicant did not in his summons provide any draft or proposed grounds of appeal, and in his written submissions attached to his supporting affirmation, he relied on what appears to me some standard pro forma principles and authorities commonly used in this type of application for judicial review of the Board’s decision, of which the Applicant submitted in (5) that “the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s application without properly assess the credibility of the Applicant”.     

6.  The Applicant’s criticism was clearly directed at the Board’s decision instead of mine which he proposes to appeal, and even then he was wrong to criticize that the Adjudicator did not properly assess his credibility, of which the Adjudicator clearly did, and with thorough and detailed analysis and reasoning, set out in paragraphs 25 – 55 of the Board’s decision that I find the Applicant’s bare complaint totally devoid of any basis or merits.

7.  Other than that the Applicant has not put forward any ground or complaint about any decision as being unfair or unreasonable, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any 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. 

8.  In the premises and for the reasons given, I refuse to grant leave for the Applicant to appeal, and accordingly dismiss his summons.