HOSAIN SHAHIN v. TORTURE CLAIMS APPEAL BOARD

CAMP 464/2021

[2022] HKCA 1644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 464 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 823 OF 2019)

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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 (Kwan VP and Cheung JA) handed down on 20 May 2022 ([2022] HKCA 665). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against the decision of Deputy High Court Judge To on 1 June 2021 ([2021] HKCFI 1304) refusing to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 31 May 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 10 June 2022. Having considered his submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 21 December 2015 and was arrested by the police on the same day. On 24 December 2015, he sought non-refoulement protection on the basis that he would be ill-treated or even killed by the Awami League because his father was an active member of an opposing political party, the Bangladesh Nationalist Party.

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 DHCJ K W Lung on 2 September 2021[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 18 October 2021. This application was dismissed by the Court of Appeal on 20 May 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant filed a Notice of Motion on 31 May 2022 for leave to appeal to the Court of Final Appeal and stated the following as his grounds of appeal:

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

7.  His written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

8.  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.

9.  In the present application, the applicant failed to identify properly any particular error of the court and/or what evidence was ignored by the court. He does not have any reasonably arguable basis to suggest that the Court of Appeal’s decision was wrong and 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).

10.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 31 May 2022.