ASHRAFUL ALOM v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

CAMP 1/2021

[2021] HKCA 1558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 422 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 to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and G Lam JA) handed down on 14 July 2021 ([2021] HKCA 990). The Court of Appeal dismissed his application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 21 June 2019 ([2019] HKCFI 450) 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 29 July 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 12 August 2021.  Having considered his written submissions and the papers, we consider it appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor on 5 April 2005 and subsequently overstayed.  He was arrested by the police on 21 March 2007.  He lodged a torture claim on 4 April 2007 on the basis that if he returns to Bangladesh he will be harmed or killed by the supporters of the Bangladesh Nationalist Party (“BNP”) as he quitted BNP to join the Bikalpa Dhara Bangladesh and refused their demand to rejoin BNP.

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 by almost ten months, excluding the month of August for the court’s summer vacation.  It was refused by the judge on 10 November 2020^[1]. 

5.  The applicant renewed his application to the Court of Appeal on 4 January 2021.  The application was dismissed by the Court of Appeal on 14 July 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion, the applicant only stated that he wants to go to the Court of Final Appeal because he did not get justice, without giving any particular grounds of appeal against the decision of the Court of Appeal. 

7.  In his written submissions, he reiterated the problem he faced in Bangladesh as well as the procedural history of his case and stated that he did not receive the letter from the court concerning the dismissal of the leave application.

Analysis and disposition

8.  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.

9.  In the present application, the applicant has not put forward any viable ground to show that the Court of Appeal was wrong in dismissing his application.  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).

10.  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 29 July 2021.

[1] [2020] HKCFI 2728