RE SAKIB AHMED alias MD SAKIB AHMED alias SHOHEL MD

CAMP 68/2019

[2022] HKCA 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 68 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 954/2017)

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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 4 December 2018, Campbell-Moffat J (“the judge”) dismissed the applicant’s application for leave for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non refoulement claim.

2.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal, but he failed to do so.  On 7 January 2019, the applicant took out a summons in the Court of First Instance seeking extension of time to appeal against the judge’s order dated 4 December 2018.  By an order dated 3 April 2019, the judge refused to grant leave for the applicant to appeal out of time.

3.  By a summons filed on 17 April 2019, the applicant renewed his application for extension of time to appeal before this court.  In the supporting affirmation filed on the same date, the applicant deposed that he did not receive the judge’s decision on time.  Written submissions were also lodged by the applicant on 23 May 2019, in which he essentially repeated his criticisms of the Board and alleged that the judge had failed to discharge her duty to comprehensively consider the lawfulness of the Board’s decision.

4.  However, the applicant thereafter filed an affirmation on 9 March 2020, stating that since he had to return to his home country, he applied to withdraw his summons filed on 17 April 2019.  By the order of Barma JA dated 8 April 2020, the application for extension of time was dismissed.

5.  More than a year after the dismissal of his application to appeal out of time, the applicant filed a Notice of Motion on 6 May 2021 out of time, apparently for leave to appeal to the Court of Final Appeal against the “judgment of the Court of Appeal” given on 8 April 2020.  In the Notice of Motion, the applicant merely repeated the dangers he apparently faced if he returned to Bangladesh and the alleged errors committed by the Board.  He also alleged procedural impropriety and unfairness on the part of the judge.  In his supporting affirmation filed on the same day, he deposed, inter alia, that:

“I withdraw my judicial review part Court of Appeal because I father suffering from many disease. So I want to back my own country to tack [sic] care my father and mother but now COVID-10 Corona virus Pandemic Bangladesh situation not as well. How can I back this situation. Also I do not good read and write English. The judge order was in English, No body can help me on this matter, and also I don’t have any idea for the possibility to Appeal…”

6.  On 7 May 2021, the Registrar of Civil Appeals directed, among other things, that the Notice of Motion was liable to be dismissed as an abuse of process, and that the applicant shall in his written submissions address the court as to why his Notice of Motion should not be dismissed on this basis.

7.  The applicant lodged written submissions on 17 May 2021, which was almost a verbatim repetition of his written submissions dated 23 May 2019 lodged in relation to his summons filed on 17 April 2019, being allegations of procedural unfairness in the Board’s determination of his non-refoulement claim.

8.  Having considered the applicant’s Notice of Motion and his 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.

9.  The applicant claimed that he had to return to his home country (i.e. Bangladesh) to take care of his parents by reason of his father’s illness.  Not only is this contention unsupported by evidence or particulars, it flies in the face of the very basis of the applicant’s non-refoulement claim, i.e. that he feared for his life if refouled to Bangladesh.  We are of the view that the applicant has failed to provide a reasonable explanation for the substantial delay.

10.  Further, the applicant failed to advance any reasons or grounds as to why his Notice of Motion, which was only filed after inexplicable delay, is not liable to be dismissed by reason of it being an abuse of process.  As is clear from the procedural history recited above, his summons filed on 17 April 2019 for extension of time to appeal was dismissed upon his own application for withdrawal of the same.  It is clearly an abuse of process of the court for the applicant to complain of, and seek to appeal against, this court’s dismissal of the very application he himself had applied to withdraw.  The application for leave to appeal to the Court of Final Appeal against the dismissal of his summons is in our view hopeless and utterly devoid of merit.   

11.  The matters stated by the applicant in his Notice of Appeal, supporting affirmation and written submissions also 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.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion filed on 6 May 2021 is dismissed.