RE MOHAMMAD MONIR HOSSAIN MUNSHI

CACV 397/2021

[2023] HKCA 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 397 OF 2021

(ON APPEAL FROM HCAL 2180/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 26 January 2022, this court (Barma JA and Lisa Wong J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 5 August 2021 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 13 June 2022, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant simply stated that he “[wanted] to go to the Court of Final Appeal”.  In the affirmation filed on the same day, the applicant merely acknowledged that his application was out of time.

4.  In breach of the directions by the Registrar of Civil Appeals, the applicant lodged his written submissions late.  However, given the short delay (by 1 day), we have proceeded to consider the submissions. In his written submissions lodged on 28 June 2022, the applicant merely stated, in gist, that he did not want to return to Bangladesh because he preferred the living conditions in Hong Kong.

5.  Having considered the applicant’s Notice of Motion, affirmation and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have therefore determined the applicant’s application on the basis of the documents filed.

6.  The applicant failed to explain how and when he eventually came to know about the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.  The delay of more than 3 months is substantial, and the application should be dismissed on this basis alone.  We have nonetheless considered the merits of the application.

7.  In any event, the matters advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

8.  None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion filed on 13 June 2022 is dismissed.