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

CAMP 73/2020

[2021] HKCA 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 73 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1602 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 application 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 4 November 2020^[1] refusing to grant leave to adduce a new ground of appeal and leave to appeal out of time against the decision of Deputy High Court Judge K W Lung on 25 October 2019^[2] dismissing his application for leave to apply for judicial review concerning his non-refoulement claim.

2.  The applicant is a national of Bangladesh.  His claim was made on the basis that he would be harmed or killed by members of the Bangladesh Chhatra League, a student wing of the Bangladesh Awami League in his locality, because he was an active worker of the Jamaat-e-Islami Party. 

3.  His notice of motion for leave to appeal to the Court of Final Appeal was filed on 26 November 2020.

4.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 27 November 2020 that the notice of motion shall be determined on paper only without an oral hearing.  The applicant lodged a written submission on 10 December 2020.  Having considered the papers, we think it appropriate to determine this application without an oral hearing and will proceed to do so. 

5.  The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Lung of 25 October 2019 and leave to adduce a new ground of appeal.  His application was late for nearly three weeks.  It was refused by the judge on 19 June 2020^[3].  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 30 June 2020.

6.  On 4 November 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ Lung because the applicant failed to show that he has any reasonable prospect of success in his intended appeal.  We will not repeat the detailed reasons in the Court of Appeal judgment.

7.  In the notice of motion filed on 26 November 2020, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

8.  His written submissions in this application are the same as the submissions he lodged previously with the Court of Appeal, in which he submitted that the Adjudicator had acted in a procedurally unfair manner without properly assessing his credibility and he again emphasized that high standards of fairness are required in the determination of a torture claim.

9.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 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.  In the present application, the applicant has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.  The applicant’s grounds of appeal are just bare assertions without particulars, elaboration and evidence in support. He has also 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).

11.  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 26 November 2020.