RE RAHMAN MOHAMMAD MASUDUR

CACV 174/2019

[2019] HKCA 1064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2019

(ON APPEAL FROM HCAL NO 923 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 12 August 2019 ([2019] HKCA 895) dismissing his application for relief from the sanction for failing to observe an unless order.

2.  The application for leave to apply for judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board(“the Board”) concerning the applicant’s non-refoulement claim was refused by Deputy High Court Judge Josiah Lam on 2 April 2019.

3.  The applicant filed a Notice of Appeal against the decision of the judge on 11 April 2019.  By an unless order dated 24 May 2019, the applicant was directed to lodge the appeal bundles on or before 31 May 2019, failing which the appeal would be dismissed without further order (“the Unless Order”). 

4.  As the applicant did not lodge an appeal bundle by the time stipulated pursuant to the Unless Order, his appeal was dismissed on 1 June 2019.

5.  On 9 July 2019, he filed a summons to apply for relief from the sanction for failing to observe the Unless Order.  His application was dismissed by the Court of Appeal on 12 August 2019, as it was considered that there was no good reason for the failure to comply with the Unless Order and further that the appeal has no merits.

6.  The applicant filed a Notice of Motion on 14 August 2019 for leave to appeal to the Court of Final Appeal.  He lodged his written submission on 29 August 2019, which was one day after the time as directed by the Registrar of Civil Appeals.

The grounds of appeal

7.  The applicant reiterated the background of his claim and stated his grounds of appeal in his written submission which may be summarized as follows:

(1)  It is impossible for him to relocate in Bangladesh as he must submit his identity card to the nearest police station to take up any work.  Then the police could arrest him.

(2)  The Director dismissed his claim as it is only considered as a personal problem.  The applicant doubts why they did not send him back at that time.

(3)  His main enemy was the student wing of the Awami League.  The students were backed by the police and the Bangladesh government.  The police would torture him and “other friend” on false claim.

(4)  It is impossible for the applicant to understand the law and point out any error of law as he is not an educated man and there was no lawyer to help him in the appeal board. 

(5)  There was procedural error in the screening process.  He failed to answer correctly many questions but that does not mean that his claim is false.

Discussion and disposition

8.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 15 August 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We find this appropriate and will proceed to determine this application on paper.

9.  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.

10.  The applicant has not pointed out why the Court of Appeal was wrong in the exercise of its discretion in dismissing his application for relief from sanction.  His grounds of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  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).

11.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.