RE KHAN IRFAN

HCAL 486/2018

[2019] HKCFI 1670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 486 OF 2018

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D E C I S I O N

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1.  On 24 May 2019 I refused to extend time for the applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) in respectively rejecting his non-refoulement claim and dismissing his subsequent appeal upon finding that there was no good reason for his six-week delay with his application, that none of the grounds put forward by him as reasonably arguable, that there was no error of law or procedural unfairness in his process before the Director or the Board, and that there was no merits or realistic prospect of success in his intended application.

2.  The applicant now by a summons issued on 29 May 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 that 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 (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 involve 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 provide either in his summons or supporting affirmation any draft or proposed ground for his appeal, or any particulars as to any error in the decision or why it was unreasonable or unfair, and at the hearing he merely stated that he was not satisfied with the Board’s decision, and repeated the reasons why he was late with his leave application for judicial review, that his problems back home remained unresolved, and that his life would still be in danger if refouled to Pakistan.  As such I am not satisfied that his intended appeal has any reasonable prospect of success, or that there is any other reason in the interests of justice why his appeal should be heard.

6.  In the premises and for the reasons given, I refuse to grant leave for the applicant to appeal, and accordingly his summons is dismissed.