RE ISLAM MD RAFIQUL

CAMP 157/2020

[2022] HKCA 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 157 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 443 OF 2017)

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JUDGMENT

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

1.  This court handed down judgment on 14 March 2022 ([2022] HKCA 367) dismissing the applicant’s application to extend time to appeal against an order of DHCJ Woodcock (“the Judge”) given on 23 April 2018 refusing to grant leave to apply for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 16 May 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. The last day for filing the Notice of Motion expired on 11 April 2022. That was the last day of the High Court’s pandemic general adjournment period, so he should have filed the Notice of Motion the next day, on 12 April 2022.

4.  However, under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  In the present case, the applicant was late by about a month which is a substantial delay. He explained in his supporting affirmation that he did not receive our judgment in time as someone took it away from his letterbox and only returned it to him later. It is a bare assertion and in the absence of any corroborative evidence in support, we do not accept it is a good reason for the substantial delay.

6.  Moreover, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal. He advanced the following in the Notice of Motion:

“I am writing my grounds regarding my notice of appeal was dismissed by appeal court. But I am not satisfied in this decision because still I have problem by my enemies and they are belong to ruling party members and supporters if I go they can do any harm to my life and I was unable to submit my supporting document in past but I will try my best to obtain as soon as possible before my oral hearing. I request to give me the time to take from my country.”

7.  In compliance with the directions of the Registrar of Civil Appeals made on 16 May 2022, the applicant lodged his written submissions in support of the Notice of Motion on 27 May 2022. This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, he enclosed (1) a letter from Autshahi Union Branch, Tongibari, Munshigani[j] dated 23 May 2022 saying that he was a member of Tongibari Thana Brach of Bangladesh Nationalist Youth Party in Munshiganj district; that he had been very active in politics from the grassroots level and that he later served as the district publicity secretary; the party was organized and strengthened under his strong leadership; his shops were attacked and looted due to political disputes; and he was forced to leave his country to save his life; and (2) a list dated 1 January 2013 of members of the Convening Committee of the newly formed 21 member Juba Dal-January/2013 of the Autshahi Union Branch Youth Party, in which the applicant was shown as one of the members.

9.  There was no attempt to apply for leave to adduce the above as fresh evidence. It is not known when the applicant obtained those documents and why he had not adduced them earlier. In any event, the documents do not take the applicant’s case any further.

10.  As explained in [8] of our judgment, the Board accepted that the applicant was an ordinary member of the Bangladesh Nationalist Party (“BNP”) and he faced demands for extortion money for his business and his shop was once vandalized in April 2014. The Board had rightly pointed out that as the applicant joined BNP in 1987 and the incident of extortion did not occur until 24 years later, his political background should have nothing to do with the extortion. Further, the applicant did not suffer any physical harm and he was able to get effective assistance from the branch of BNP Chairman, which suggested that the risk of ill-treatment was not real and substantial. Further, relevant country of origin information suggests that there is reasonable state protection, and internal relocation would be a viable option.

11.  The Judge found there was no error in the Board’s decision that warrant the court’s intervention, and we dismissed the appeal from the Judge.

12.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.

13.  Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

14.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

15.  By reason of the above, the Notice of Motion filed on 16 May 2022 is dismissed.