RE AHAMMED MOHAMMED TAHANBIR

CACV 550/2018

[2021] HKCA 854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2018

(ON APPEAL FROM HCAL NO 1165 OF 2017)

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J U D G M E N T

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

1.  On 5 January 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung and Au JJA) judgment of 23 December 2020 (“the Judgment”) [2020] HKCA 1059. In the Judgment, we dismissed the applicant’s application for relief from sanction for failing to comply with an unless order to lodge his appeal bundles (“Unless Order”).

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  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 (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

4.  In his Notice of Motion, the applicant raised the following grounds of appeal:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

5.  In his written submissions of 19 January 2021 filed pursuant to the Court’s directions, the applicant quoted some authorities on high standard of fairness and on Wednesbury unreasonableness.  He also cited section 37ZT of the Immigration Ordinance (Cap 115) about the late filing of notice of appeal before the Torture Claims Appeal Board.  However, none of these submissions were raised before this Court.  These new arguments would therefore not be entertained: Re Shariful Islam [2020] HKCA 342, per Lam VP at [21].  In any event, for the following reason, we do not see how these submissions would assist the applicant.

6.  In our view, the applicant’s application is totally without merits.  In the Judgment, we dismissed the applicant’s application on the basis that he failed to provide a cogent explanation for a lengthy delay (more than a year) in seeking to apply for relief from sanction and why he failed to comply with the Unless Order to lodge the appeal bundles in the first place (see [15] - [19]). We also found that his appeal had no merits and therefore declined to exercise our discretion to lift the sanction (see [20] - [29]).

7.  None of the grounds in the applicant’s Notice of Motion and written submissions constitute any viable grounds of appeal against the Judgment as none of them pinpointed any specific errors in the Judgment.

8.  In any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

9.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.