RE BAPPY SHAHAJADA MURAD

CAMP 131/2019

[2021] HKCA 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 131 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1416/2018)

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J U D G M E N T

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

1.  On 8 December 2020, this court (Chu JA, Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 8 March 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 2 February 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

The applicant gently did not have enough time to address the bundle.

Rest of the grounds I will submit as soon as possible.”

4.  In the affirmation dated 2 February 2021, the applicant deposed that:

“…On around 28^th day of January 2021, I get the judgment dated 08^th day of December 2020,

Because of the Virus situation in Hong Kong it was quite difficult for me to get help from any one as I am an uneducated person.  Due to the language problem, it took me days to find help.  Please accept my sincere apology and accept my fresh application for Notice of Motion for the leave to apply to the Court of Final Appeal.”

5.  In another affirmation also dated 2 February 2021, the applicant deposed that:

“1.  The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

2.  The [judges] also failed to find out the clear details of the current situation of Bangladesh”

6.  The applicant lodged a written submission in support of the application on 4 March 2021.  In the written submission, the applicant referred to a number of international treaties and cases on high standard of fairness but he did not explain their relevance.  He also contended that:

(1)  the Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of those cases;

(2)  the Board failed to properly scrutinize the Director’s Decision and adopted a general practice to not question the decision of the Director; and

(3)  the decision maker is under a duty to act fairly.

7.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

8.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  He did not explain why he did not receive the judgment until 28 January 2021.  He also did not provide sufficient particulars of the steps he took to obtain language assistance.  We nonetheless go on to consider the merits of the intended appeal.

9.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

10.  The applicant advanced a number of grounds related to alleged errors in the decisions of the Board and the Director, which do not relate to any error in our judgment.  These grounds are therefore not viable grounds of appeal.

11.  As for the grounds raised in the affirmation dated 2 February 2021 based on state acquiescence, we have dealt with this ground in [14] of our judgment and the applicant has failed to identify any error in our judgment.  This ground is in our view not reasonably arguable before the Court of Final Appeal.  In the same affirmation, the applicant also advanced a ground based on the situation in Bangladesh.  This ground, like all the grounds advanced by the applicant, lacks particulars and is bound to fail.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion dated 2 February 2021 is dismissed.