AHAMMED MD ROBIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 185 /2019

[2020] HKCA 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 185 OF 2019

(ON APPEAL FROM HCAL NO 178 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):

Background

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 Barma JA) handed down on 11 March 2020 ([2020] HKCA 140) dismissing his application for relief from sanction for failing to observe an unless order.

2.  The applicant first took out an application in HCAL 379/2017 to seek leave to apply for judicial review against the decision of the adjudicator of the Torture Claims Appeal Board(“the Board”) concerning his non-refoulement claim.  This was refused by Deputy High Court Judge Woodcock on 26 January 2018^[1].

3.  He did not lodge an appeal against the decision of DHCJ Woodcock but took out another application for leave to apply for judicial review under a new action number HCAL 178/2018 against the decision of the Board.  This was dismissed by Deputy High Court Judge Josiah Lam on 4 April 2019^[2].

4.  The applicant then filed a Notice of Appeal against the decision of DHCJ Josiah Lam on 17 April 2019.  On 18 April 2019, the Registrar of Civil Appeals directed him to lodge appeal bundles on or before 8 May 2019. He did not comply with the direction.  The Registrar made a further direction on 10 May 2019 that he should lodge the appeal bundles on or before 29 May 2019, failing which the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order.  He again failed to comply with this direction.

5.  By an unless order made by Kwan VP on 31 May 2019, the applicant was directed to lodge the appeal bundles on or before 10 June 2019, failing which the appeal would be dismissed without further order (“the Unless Order”). 

6.  As the applicant did not lodge any appeal bundle by the time stipulated pursuant to the Unless Order, his appeal was dismissed on 11 June 2019.

7.  On 18 October 2019, he filed a summons to apply for relief from sanction for failing to observe the Unless Order.  His application was dismissed by the Court of Appeal on 11 March 2020 as it was considered that there was no good reason for the failure to comply with the Unless Order and the appeal has no merits.

8.  The applicant filed a Notice of Motion and an affirmation in support on 11 May 2020 for leave to appeal to the Court of Final Appeal and lodged his written submission on 29 June 2020.

9.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar directed on 22 May 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  Having considered the Notice of Motion and the written submission, we think it appropriate to determine this application on paper and will proceed to do so.

10.  The applicant stated the following grounds of appeal in the Notice of Motion and his supporting affirmation:

(1) It is not true there is no substance in the grounds of his application for leave to seek judicial review.

(2) He did not complain about the poor performance of his duty lawyer due to his fear that he would be picked out for “misappropriating” by the adjudicator.

(3) He did not have enough time to “address the bundle”.

(4) The judges were wrong in law in holding that there was no state acquiescence or involvement.

(5) The judges also failed to find out the details of the current situation of Bangladesh.

11.  His further submission in writing may be summarized as follows:

(1) High standards of fairness are required in the determination of a torture claim and the decision-maker is under a duty to act fairly.

(2) The Board failed to scrutinize the Director of Immigration and did not consider matters such as the country conditions of the applicant’s country of origin.

Discussion and disposition

12.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal. 

13.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

14.  The judgment of the Court of Appeal was handed down on 11 March 2020 during the period when there was a general adjournment of court proceedings for public health reasons.  In particular, the High Court Registry was closed during 22 March to 5 May 2020, so for that period the applicant was not able to file the Notice of Motion.  He did so promptly on 11 May after the Registry was re-opened.  For the purpose of computing the 28-day period from the date of the judgment of the Court of Appeal, the period of closure of the Registry would be excluded pursuant to section 71(1A) of the Interpretation and General Clauses Ordinance (Cap 1).  So there is no need for us to exercise our power to extend time for the applicant to file the Notice of Motion.

15.  Turning to the merits of the application, the applicant has not pointed out why the Court of Appeal was wrong in dismissing his application for relief from sanction.  In particular, he has not demonstrated with evidence in support there is any merit in his appeal against the decision of DHCJ Josiah Lam. 

16.  The applicant’s grounds of appeal and submissions do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. He has 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).

17.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.