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

CAMP 362/2021

[2022] HKCA 1005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 362 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1273 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 Chu JA) handed down on 16 March 2022 ([2022] HKCA 350). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against the decision of Deputy High Court Judge K W Lung on 16 March 2021 ([2021] HKCFI 616) 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 21 April 2022 that the applicant shall lodge written submissions on or before 5 May 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a Bangladeshi national. He had previously been repatriated to his country from Hong Kong. He came to Hong Kong on 9 March 2016 and surrendered to the Immigration Department on 23 May 2016. He lodged his non-refoulement claim on 27 July 2016. His claim was made on the basis that if he returned to Bangladesh, he would be harmed or killed by enemies in the Awami League (“AL”) because of his affiliation with the Bangladesh National Party. He also feared that he would be arrested and tortured by the police because he was thought to be responsible for the death of Minto, a local AL member and that he would be killed by Minto’s brother, who was the vice president of the student wing of the AL in the district.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for about 2.5 months. It was refused by the judge on 15 July 2021[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 30 August 2021. The application was dismissed by the Court of Appeal on 16 March 2022 as the applicant failed to show any prospect of success in his intended appeal and his application for judicial review.

Grounds of appeal

6.  In the Notice of Motion filed on 21 April 2022, the applicant stated that he does not agree with the decisions of the courts and did not get justice.

Analysis and disposition

7.  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.

8.  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).

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.  The deadline for filing the Notice of Appeal was 13 April 2022. The court registry had already resumed business after the general adjournment period on 12 April 2022. The applicant was late for 8 days in taking out the present application and did not provide any explanation for his delay. Under these circumstances, it would not be appropriate to grant an extension of time for him to apply for leave to appeal to the Court of Final Appeal.

11.  In any event, the applicant’s contention that he did not get justice is just a bare assertion without particulars or evidence in support. He failed to demonstrate that the Court of Appeal’s decision is unjust, nor did he 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).

12.  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 21 April 2022.