MOHAMMED FATEH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 88/2021

[2022] HKCA 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2021

(ON APPEAL FROM HCAL NO 1155 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 Chow JA) handed down on 15 October 2021 ([2021] HKCA 1501) refusing to grant relief from the sanction for failing to comply with an unless order.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 3 December 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 17 December 2021. Having considered his written submissions and the papers, it is appropriate to determine this application on paper.

3.  The applicant is a national of India. He came to Hong Kong on 16 April 2014 as a visitor and subsequently overstayed. He was arrested by the police on 4 May 2014. He raised a non-refoulement claim on 6 May 2014. He claimed that he will be harmed or killed by a loan shark if he returns to India because he failed to repay the loan.

4.  His non-refoulement claim was dismissed by the Director of Immigration on 31 December 2015 and 9 December 2016. His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 12 June 2018.

5.  He filed a Form 86 on 21 June 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by Deputy High Court Judge K W Lung on 23 February 2021 ([2021] HKCFI 423).

6.  On 9 March 2021, the applicant filed a notice of appeal against the judge’s decision. His appeal was dismissed on 13 July 2021 for failure to comply with the unless order to lodge his appeal bundles (“Unless Order”).

7.  The applicant filed a summons to apply for relief from sanction for failing to observe the Unless Order on 27 July 2021. His application was dismissed by the Court of Appeal on 15 October 2021. The applicant filed a Notice of Motion on 3 December 2021 for leave to appeal to the Court of Final Appeal out of time.

Grounds of appeal

8.  The applicant stated the following as his grounds of appeal in the Notice of Motion:

“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.”

9.  In his written submissions, he further submitted that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and that the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

10.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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 application for leave to appeal.

11.  Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether 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).

12.  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.

13.  In the supporting affirmation, the applicant stated that he seeks leave to file the Notice of Motion out of time as he did not receive the judgment within the time stipulated for appeal. The Court had sent the judgment to the applicant’s address as stated in his notice of change of address for service filed on 10 August 2021. It is noted that the applicant’s address stated in his present application is slightly different from the address stated in his notice of change of address for service[1]. 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 and submissions are just bare assertions without particulars or evidence in support. He does not have any reasonably arguable ground to show that the Court of Appeal was wrong in refusing to grant relief from the sanction for failing to observe the Unless Order.

15.  Furthermore, 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).

16.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 3 December 2021.