ISLAM MAJHARUL v. TORTURE CLAIMS APPEAL BAORD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 72/2020

[2020] HKCA 966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 72 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1142 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 Yuen JA) handed down on 16 October 2020 ([2020] HKCA 825) refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dismissing his application for leave to apply for judicial review concerning his non-refoulement claim. The applicant is a national of Bangladesh. He claimed that he would be harmed or killed by the members of the Awami League (“AL”) as he refused to quit the Bangladesh National Party to join the AL. He filed his Notice of Motion on 2 November 2020 with a supporting affirmation.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 November 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged a written submission on 12 November 2020.  Having considered the papers, we find it appropriate to determine this application on paper and will proceed to do so.

3.  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 8 August 2019.  His application was late by four days.  It was refused by the judge on 19 June 2020[1]. The applicant renewed his application to the Court of Appeal for extension of time to appeal on 30 June 2020.

4.  On 16 October 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ Lung because of the lack of merits of the intended appeal.

5.  In the Notice of Motion filed on 2 November 2020, the applicant stated the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration, by which the Director and the Adjudicator of the Torture Claims Appeal Board are required to give reasons to justify their decisions.

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and the Adjudicator.

(3)  He will face hardship if he returns to his country. The Board significantly relied on the source of news which is not officially recognized or is simply hearsay;

(4)  The judges did not apply the law properly.

6.  The written submissions lodged by the applicant on 12 November 2020 are substantially the same as his submissions last time. He stressed that high standards of fairness are required in the determination of a torture claim and submitted that the Adjudicator had acted in a procedurally unfair manner without properly assessing his credibility. 

7.  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.

8.  The applicant’s grounds are just bare assertions without elaboration or evidence in support.  He has not shown any merits in his intended appeal.  In particular, the Court of Appeal had sufficiently dealt with his submissions in the decision of 16 October 2020 and the applicant has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.  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).

9.  A line of authority suggests that appeals against a refusal of extension of time to appeal by the Court of Appeal are not susceptible to further appeal and another authority is to the contrary (Re Mohammed Selim [2020] HKCFA 25 at §§6 to 7).  In light of the above conclusion on the lack of merits, it is not necessary to resolve whether the appeal lies to the Court of Final Appeal from the Court of Appeal’s refusal of an extension of time to appeal or from the decision of the Court of First Instance refusing leave to apply for judicial review.

10.  For the above reasons, we dismiss the Notice of Motion filed on 2 November 2020 for leave to appeal to the Court of Final Appeal.