RE KHAN MUHAMMAD ARSHAD

HCAL 998/2018

[2020] HKCFI 517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 998 OF 2018

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D E C I S I O N

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1.  On 18 November 2019 I 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 the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding there was no good reason for his 10 months delay with his intended application, that none of the proposed grounds put forward by him was reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his 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 22 November 2019 seeks leave to appeal against that decision which was interlocutory in nature: Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and that section 14AA of the High Court Ordinance, Cap 4 (“the Ordinance”) 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, 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 or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and in his written submissions he merely repeated his claimed reasons for being late with his leave application for judicial review without identifying any error in the decision with any details or particulars, while at the hearing of his summons he merely asked to be allowed to remain in Hong Kong until his problems back home have been resolved.  As such 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. 

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