MOHSIN MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 258/2020

[2022] HKCA 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 258 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1782 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 Au JA) handed down on 23 August 2021 ([2021] HKCA 1200). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 13 May 2020 ([2020] HKCFI 780) refusing to grant extension of time for the applicant to seek 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 10 September 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 24 September 2021. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and will do so accordingly.

3.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 14 May 2014 and was arrested by the police on the same day. He raised his non-refoulement claim on 16 May 2014. His claim was made on the basis that he would be harmed or killed by the people of Awami League as he was a member of Jamaat-e-Islami, the rival party of Awami League.

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 26 days. It was refused by the judge on 17 December 2020[1].

5.  The applicant renewed his application to the Court of Appeal on 28 December 2020. The application was dismissed by the Court of Appeal on 23 August 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 10 September 2021, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  His written submissions may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

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.  The applicant’s written submissions were dealt with by the Court of Appeal in the judgment dated 23 August 2021. The grounds stated in his Notice of Motion were not raised in the leave application before the Court of First Instance or in his previous application before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

10.  In any event, these new grounds are just bare assertions without particulars and evidence in support. In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application for extension of time to appeal. Besides, he has not identified 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.  For the above reasons, we dismiss the Notice of Motion filed on 10 September 2021 and refuse to grant leave to appeal to the Court of Final Appeal.