RE MD NAHID

HCAL 938/2018

[2019] HKCFI 2491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 938 OF 2018

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DECISION

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1.  On 30 July 2019 Deputy High Court Judge Josiah Lam made the following orders regarding the Applicant’s application for leave to apply for judicial review of two decisions of the Torture Claims Appeal Board (“the Board”) in dismissing his appeals regarding his non-refoulement claim:

  (a)   no extension of time to be granted for his late application for judicial review of the first decision of the Board in dismissing his appeal regarding his claim under torture risk, BOR 3 risk and persecution risk upon finding no good reason for his serious delay and no merit in his intended application; and

  (b)   no leave to be given for his application to apply for judicial review of the second decision of the Board in dismissing his appeal regarding his claim under BOR 2 risk upon finding no reasonably arguable basis to challenge the decision and no merit in his intended application. 

2.  The Applicant now by a summons issued on 8 August 2019 seeks leave to appeal against the first part of that decision refusing to extend time for his late application for judicial review of the first decision of the Board 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 provide either in his summons or his supporting affirmation 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, other than just claiming to have a good ground of appeal in his affirmation, nor did he make good use of the hearing of his summons to do so when he failed to attend without any prior notice.

6.  Shortly after the hearing the Applicant wrote to the Court explaining that he never received any notice of the hearing until later that day when he received a telephone call from the clerk that he learnt of the hearing,and he asked for another hearing for his summons.

7.  According to the court record, the notice of hearing was sent on 22 August 2019 to the Applicant by ordinary post to his last reported address and has not been returned through undelivered post.  It is for the Applicant to satisfy the Court that somehow the notice failed to reach him, and in the absence of any further particulars or evidence that it was indeed the case, I am not satisfied that he has provided any good reason for his failure to attend the said hearing, and in the exercise of the discretion whether in the circumstances to accede to his request for another hearing for his summons, I have taken into account of the fact as noted above that he has not provided any ground of appeal which he might otherwise wish to elaborate or clarify at a hearing, and in the absence of any reason why further judicial time and resources be wasted for another hearing, I refuse his request accordingly.

8.  As such and in the absence of any error in the decision being clearly or properly identified by the Applicant, I do not see any reasonable 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. 

9.  In the premises and for the reasons given, 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.