AMIN KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 71 /2020

[2020] HKCA 1030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 71 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 576 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 14 October 2020^[1] refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam dismissing his application for leave to apply for judicial review concerning his non‑refoulement claim. The applicant is a national of Bangladesh. His claim was made on the basis that he would be harmed or killed by terrorists from the Bangladesh National Party and the Rapid Action Battalion. He filed the Notice of Motion on 27 October 2020.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 28 October 2020 that the notice of motion shall be determined on paper only without an oral hearing. The applicant lodged a written submission on 10 November 2020.  Having considered the papers, we think it is appropriate to determine this application on paper and will do so accordingly.

3.  The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Josiah Lam of 9 August 2019^[2]. His application was late for more than two months, exclusive of the period of the summer vacation of the court.  It was refused by DHCJ Bruno Chan on 18 June 2020^[3]. The applicant renewed his application to the Court of Appeal for extension of time to appeal on 29 June 2020.

4.  On 14 October 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ Josiah Lam because of the lack of merits of the intended appeal.

5.  In the Notice of Motion filed on 27 October 2020, the applicant stated his grounds of appeal as follows:

“I would like to inform the Honourable Court that there is some error in law in my Decision. Decision maker just realid [sic] on COL [sic] information and my previous facts which were in favour while rejecting my claim. Acual [sic] life occur different situation that what is mentioned in COL Information. The officer and cours [sic] prefe [sic] 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 approch [sic] unlikely fairly access the danger of my life and clear not reasonable.”^[4]

6.  His written submissions are substantially the same as the ones he previously lodged with the Court of Appeal in which he submitted that “high standards of fairness” are required in the determination of a torture claim.

7.  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.

8.  The applicant’s grounds of appeal are just bare assertions without particulars and evidential basis.  He has not shown any merits in his intended appeal.  In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.  He has also 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).

9.  For the above reasons, we dismiss the notice of motion filed on 27 October 2020 for leave to appeal to the Court of Final Appeal.