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

CAMP 69 /2020

[2021] HKCA 533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 69 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 362 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):

1.  This is the applicant’s Notice of Motion for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 23 October 2020 ([2020] HKCA 843). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam on 28 June 2019 ([2019] HKCFI 1609) refusing to grant leave 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 24 February 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 8 March 2021.  Having considered his submissions, we think it appropriate to determine this application on paper.

3.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 13 November 2012 and was arrested by the police on 19 January 2013.  He raised a non-refoulement claim on 11 March 2014 on the basis that he would be harmed or killed by members and supporters of the Awami League and he also feared that he would be arrested by the police in Bangladesh since he had been accused of committing arson.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Lam.  His application was late for more than 4 months.  It was refused by DHCJ Bruno Chan on 24 June 2020. 

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 29 June 2020.  The application was dismissed by the Court Appeal on 23 October 2020 because the applicant failed to show any prospect of success in his intended appeal.  

Grounds of appeal

6.  In the Notice of Motion filed on 23 February 2021, the applicant 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 contentions in his written submissions may be summarized as follows:

(1) high standards of fairness are required in the determination of a torture claim;

(2) the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility.

Analysis and disposition

8.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), an 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.

9.  Section 22(1)(b) of the 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.

10.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

11.  In the present application, the applicant was late for more than three months in filing the Notice of Motion.  He explained in his affirmation that he did not receive the judgment within the time stipulated for appeal.

12.  The applicant was absent when the Court of Appeal handed down the judgment on 23 October 2020.  The judgment was sent to the applicant’s address by post on the same day.  It is noted that the applicant’s address stated in his Notice of Motion is different from the address stated in his previous summons filed with the Court of Appeal on 29 June 2020.  However, the applicant has not filed any notice of change of address for service.  Under these circumstances, the applicant’s reason for the delay is not justifiable.

13.  The court has repeatedly stated that it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15). 

14.  In any event, the applicant’s grounds of appeal are just bare assertions without particulars and evidence in support. In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.

15.  Moreover, the applicant 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).

16.  For the above reasons, we dismiss the Notice of Motion filed on 23 February 2021 and refuse to grant leave to appeal to the Court of Final Appeal.