RE WIWIN SETYOWATI SAMIN

HCAL 1070/2018

[2020] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1070 OF 2018

__________________________

__________________________

________________________

D E C I S I O N

________________________

1.  On 4 December 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 her appeal regarding her non-refoulement claim upon finding no good reason for her serious delay of more than nine months with her application, that none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 16 December 2019 seeks leave to appeal against that decision which was interlocutory in nature: 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 Applicant’s case, she did not in her 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, other than just claiming in her affirmation that the decision had never been translated to her and hence she did not understand its contents since she does not read or write English.

6.  If that was indeed the case, and I do not accept that it was since her present application and supporting affirmation are all written in English which clearly shows that she has had legal assistance, that cannot in itself form any proper or valid ground to appeal against the decision.  As such and in the premises I do not see any prospect of success in her intended appeal. 

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