RE RASHID

HCAL 140/2018

[2020] HKCFI 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 140 OF 2018

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D E C I S I O N

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1.  On 16 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 Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding that there was no good reason for his more than four months’ delay with his intended 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 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 21 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 in which 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 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 in [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 provide any draft or proposed ground of appeal either in his summons or at the hearing, while in his written submission, he merely put forward broad and general notions of non-refoulement principles without elaboration on the specifics of how they relate to the facts or circumstances of his case.  As such and in the absence of any error of law or any failure to take into account relevant matters in the decision being clearly and properly identified by the Applicant, I do not see any reasonable prospect of success in his intended appeal. 

6.  In the premises, 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.