FAKHRUDDIN MD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 117 /2020

[2021] HKCA 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 117 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1251 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 3 March 2021 ([2021] HKCA 213). The Court of Appeal dismissed his application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 23 December 2019 ([2019] HKCFI 2668) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 17 May 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 27 May 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said directions has expired, and, having considered the papers, we think it is appropriate to determine this application on paper.

3.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 4 January 2016 and raised a non-refoulement claim on 17 August 2016 on the basis that he will be harmed or killed by one of his brothers due to some monetary dispute if he returns to Bangladesh.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  His application was late by four days.  It was refused by the judge on 28 July 2020.

5.  The applicant renewed his application to the Court of Appeal on 4 August 2020.  The application was dismissed by the Court Appeal on 3 March 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 13 May 2021, the applicant only stated that he wants to go to the Court of Final Appeal without stating any particular grounds of appeal.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  The Court of Appeal may extend the time for making the application under section 24(5).

8.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.  The applicant was late for more than six weeks in filing the Notice of Motion.  He did not provide any explanation for the delay.  Thus, there is no good ground to justify granting an extension of time for him to file the Notice of Motion.

11.  In any event, the applicant does not have any prospect of success in his intended appeal.  He has not put forward any ground to demonstrate that the Court of Appeal was wrong in rejecting his application. Moreover, he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 13 May 2021.