RE RAZU NAZMUL HASAN

CACV 412/2021

[2022] HKCA 1406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 412 OF 2021

(ON APPEAL FROM HCAL NO 1016 OF 2021)

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J U D G M E N T

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

1.  On 24 August 2021, DHCJ Bruno Chan (“the Judge”)  made an order (“the Judge’s Order”)  dismissing the applicant’s application for leave to apply for judicial review in respect of his non-refoulement claim and making a restricted proceedings order (“RPO”)  against him.

2.  The Judge’s reasons were set out in the Form CALL-1 ([2021] HKCFI 2478).  Essentially, the reasons were that the applicant had failed in a previous application for judicial review, had failed in the Court of Appeal on his appeal therefrom, and had failed in the Court of Final Appeal in his application for leave to appeal to that court.  The Applicant then made another claim for non-refoulement, which the Director of Immigration rejected on the ground that there was no significant change of circumstances as required by s.37ZO of the Immigration Ordinance. 

3.  The Applicant then applied to the Judge for leave to apply for judicial review but no grounds were contained in the Form 86 or affirmation.  Accordingly, the Judge refused leave for reasons set out in [13] – [14] of the Form CALL-1, and made the RPO for the reasons set out in [17] – [19] thereof. 

4.  The scope of the RPO was set out in sub-paragraphs 20(1) and (2)  of the Form CALL-1, as supplemented by the rest of paragraph 20:

(1)  The applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, without leave of the Court of First Instance;

(2)  All applications for leave under paragraph (1)  shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

5.  On 27 August 2021, the applicant filed a Notice of Appeal under CACV 412/2021 to appeal against the Judge’s Decision (“the Appeal”).  On 2 September 2021, the Registrar of Civil Appeals directed that unless the applicant applies for leave in accordance with paragraph 20(2)  of the Judge’s Decision on or before 16 September 2021, the appeal will be referred to the Court of Appeal for dismissal.    

6.  The Judge was entitled to order that the applicant should first obtain leave before appealing against the RPO (Siti Khotimah v Director of Immigration [2022] HKCA 327 at [43]).  However, the applicant did not make any application for leave.  Accordingly, on 27 September 2021, a single judge of this court ordered that the Appeal be dismissed (“the CA order”).

7.  It would appear that on 22 October 2021, the applicant filed an affirmation requesting the Court of First Instance to reconsider the RPO with proposed fresh proceedings.  On 4 November 2021, the Judge refused leave to commence such proceedings. 

8.  On 22 November 2021, the applicant then filed a Notice of Motion Appeal to appeal against the CA order.

9.  On 23 November 2021, the Registrar of Civil Appeals directed that as the Appeal had been dismissed by reason of the applicant’s failure to apply for leave in accordance with paragraph 20(2)  of the Judge’s Decision, the applicant should consider if an application for relief from sanction should be made, and if so, the application be made on or before 7 December 2021.  It was further directed that if no such application is made, the Court will deem that the applicant had no such application, and will proceed to deal with his Notice of Motion.  He was directed to lodge written submissions on or before 6 December 2021.

10.  The applicant did not make any application for relief from sanction although he did lodge written submissions on 3 December 2021.

11.  The applicant did not provide any ground of appeal in the Notice of Motion or the supporting affirmation.  In his written submissions, he repeated that he will face risk to his life if refouled as his enemies are still waiting for him and the current Bangladeshi government also wants to kill him.

12.  As the applicant failed to make an application for relief from sanction pursuant to Order 2 rule 4, Rules of High Court (Cap. 4A), the Notice of Motion is liable to be dismissed on this ground alone.  In any event, the applicant had not advanced any reason challenging the CA order. We have also perused the Form CALL-1 and consider that the Judge was clearly entitled to refuse leave and to make the RPO.

13.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.  No question of great general or public importance has been identified.  

14.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

15.  By reason of the above, the Notice of Motion filed on 22 November 2021 is dismissed.