MIAH MD JALAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 601 /2021

[2022] HKCA 1758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 601 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2818 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 Chu JA) handed down on 2 June 2022 ([2022] HKCA 770). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 26 August 2021 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim^[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 6 July 2022 that the applicant shall lodge written submissions on or before 20 July 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 national of Bangladesh.  He entered Hong Kong illegally on 3 January 2015 and was arrested by the police on the same day.  On 10 January 2015, he sought non-refoulement protection on the basis that he would be ill-treated or killed by members of the Awami League because of his political affiliation with the Bangladesh Nationalist Party.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  It was refused by the judge on 16 December 2021^[2].

5.  On 30 December 2021, the applicant filed a renewed application for leave to appeal out of time with the Court of Appeal.  The application was dismissed by the Court of Appeal on 2 June 2022 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The grounds of appeal in the Notice of Motion filed on 6 July 2022 may be summarised as follows:

(1)  The decision maker did not consider his summons and did not scrutinise his problem properly.

(2)  If he returns to his home country, he will be killed by his enemy.

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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  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. 

9.  The applicant was late for six days in filing his Notice of Motion.  He stated in his affirmation that he did not get the order on time.  Before handing down the judgment, the court had sent a notice of handing down of judgment on 25 May 2022 notifying the applicant the date of handing down and that the judgment would be uploaded to the Judiciary website within the same day of handing down.  The judgment was also sent to the applicant’s address by post on 2 June 2022.  It is noted that the applicant’s address stated in his Notice of Motion is different from the address he provided to the court previously but he did not file any notice of change of address with the court.  Under these circumstances, the applicant’s explanation for the delay is not justifiable.

10.  Even if the court would be minded to grant an extension of time for the applicant to file the Notice of Motion in view of the short delay, the present application is without merits.  In the judgment dated 2 June 2022, the Court of Appeal had provided reasons for rejecting the applicant’s application after considering the applicant’s Notice of Appeal and written submissions.  The applicant failed to provide any particulars or evidence to demonstrate that the Court of Appeal was wrong in its decision.

11.  Moreover, 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).

12.  For the above reasons, we dismiss the Notice of Motion filed on 6 July 2022 for leave to appeal to the Court of Final Appeal.

[1] [2021] HKCFI 2457

[2] [2021] HKCFI 3682