RE BHUIYAN YEASIN

CACV 242/2019

[2021] HKCA 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2019

(ON APPEAL FROM HCAL 1183/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 16 April 2020, this court (Kwan VP, Chu JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 23 May 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 13 July 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“On 16 April the judges of the Court of Appeal refused my leave to apply for judicial review, I am not agree with their decision, but I have no chance to appeal, so I want to go to the Court of Final Appeal for justice.”

4.  In the affirmation dated 13 July 2020, the applicant deposed that:

“Affirmation for my late filing of motion as I did not get the judgment. Immigration ask me then I came and filing the case.”

5.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 15 July 2020, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  On 19 January 2021, the applicant filed a Request for Dismissal of Appeal for the appeal filed on 30 May 2019 (i.e. the date of the Notice of Appeal).  By a letter dated 26 January 2021, the applicant was asked to indicate whether he is requesting for the dismissal of the Notice of Motion, as his appeal has already been dismissed on 16 April 2020.  The applicant did not reply to the letter dated 26 January 2021.

7.  As the applicant has failed to clarify the purpose of the Request for Dismissal of Appeal dated 19 January 2021, we would proceed to consider the merits of the application for leave to appeal to the Court of Final Appeal.

8.  The application was made some two months out of time.  The only explanation that was given for the delay was the alleged failure of the applicant to receive the judgment, which was sent to the address provided by him to the court.  We have real doubts as to whether the applicant’s excuse is a genuine one, but shall deal with the merits of the application in any event.

9.  Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

10.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

11.  The applicant has not identified any error in our judgment.  In our view, the intended appeal has no prospect of success.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion dated 13 July 2020 is dismissed.