Case Document

100%Judiciary

HCAL 712/2018

[2019] HKCFI 1064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 712 OF 2018

______________

RE:

MASNAH

Applicant

______________

Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	9 April 2019
Date of Decision:	20 May 2019

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D E C I S I O N

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1.On 20 February 2019 Deputy High Court Judge Josiah Lam refused to extend time to 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 dismissing her non-refoulement claim and her subsequent appeal respectively upon finding her delay of more than five months excessive for which she had provided no good reasons, and that none of the grounds put forward by her as reasonably arguable or with any prospect of success in her intended application.

2.The applicant by a summons issued on 5 March 2019 applied “to extend the period for making the application for leave to apply for judicial review” made no sense to me, but at the hearing she was able to clarify that as she is not satisfied with Judge Lam’s decision, she wants to appeal against the Court’s refusal to extend time for her leave application for judicial review. In the circumstances I decided to treat her summons as an application for leave to appeal against that decision, as the refusal to extend the time for an applicant to make an application for leave to apply for judicial review is 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, 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 interest of justice why the appeal should be heard.

4.The guidance on how the threshold test for reasonable prospect of success was given by 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.The applicant did not in her summons provide any draft or proposed ground for appeal, nor was she able to identify at the hearing any error in the decision or why it was unreasonable or unfair, whilst in her supporting affirmation she merely repeated her explanations for the late filing of her leave application for judicial review of which Judge Lam had already dealt with in his decision ([41] – [44]). In fact, at the hearing before me the applicant conceded that there was no error in the Court’s decision but that she simply did not want to return to her home country in Indonesia. In the premises and in the absence of any legal error in the decision being identified by the applicant, I am unable to see any reasonable prospect of success in her intended appeal.

6.For the reasons given, I refuse to grant leave to the applicant to appeal, and accordingly her summons is dismissed.