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

CAMP 436/2022, [2023] HKCA 1087

On appeal from [2022] HKCFI 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 436 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2385 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 handed down on 4 April 2023 ([2023] HKCA 498). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 18 March 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 26 April 2023. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper without an oral hearing.

3.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 13 November 2015 and was arrested by the police on the same day. He subsequently raised his non-refoulement on the basis that he would be ill-treated or killed by his elder brother and his cousin for refusing to pay them extortion money due to a previous vandalism case in his home village.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 12 October 2022[1].

5.  On 24 October 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 4 April 2023 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant stated the following grounds of appeal in the Notice of Motion filed on 12 April 2023:

(1)  The decision maker did not consider his appeal of the extension of time for judicial review;

(2)  He has severe problem in his home country. He will be killed by his enemy if he returns to Bangladesh.

Analysis and disposition

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 substantially the same as the grounds and submissions lodged before the Court of Appeal in his previous application for extension of time to appeal. These grounds have already been considered and rejected by the Court of Appeal in the judgment dated 4 April 2023. In the present application, the applicant does not have any viable grounds to show that the Court of Appeal was wrong in its decision. Besides, he 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.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 12 April 2023.