RE BHUIYAN MOHAMMAD MOMINUL HOQUE

CAMP 292/2019

[2021] HKCA 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 292 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 77 & 919 OF 2018)

________________________

________________________

________________________

J U D G M E N T

_______________________

Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 September 2020 ([2020] HKCA 744), this Court (Yeung VP and Pang JA) refused to grant an extension of time to the applicant to apply for leave to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 19 July 2019 in HCAL 77 & 919/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“the Board”) given on 11 January 2018 dismissing his petition/appeal from the decisions of the Director of Immigration (“the Director”) given on 23 August 2016 and 18 September 2017 rejecting his non-refoulement claim.

2.  On 26 November 2020, the applicant filed a notice of motion for leave to appeal this court’s judgment to the Court of Final Appeal (“CFA”).  However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (“HKCFAO”) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from and the deadline for filing the notice of motion expired on 10 October 2020.

3.  Under section 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

4.  In the present case, the applicant delayed for about 1.5 months which is substantial.  The applicant explained in his supporting affirmation dated 26 November 2020 that he was not aware of the time limit for pursuing an appeal to the CFA that caused the delay.  In our judgment, the applicant failed to provide any good reason for this Court to grant an extension of time to file the notice of motion.

5.  In any event, the applicant has not shown any or any sufficient merits in his intended application for leave to appeal to the CFA. 

6.  In the notice of motion, the applicant provides the following grounds:

“I would like to inform the Honourable Court that there is some error in law my Decision. Decision maker just relied on COL information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL information. The officer and court prefer to ignore the overwhelming 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 clear not reasonable.”

7.  In the applicant’s written submissions, he quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, he did not explain and elaborate how the aforesaid cases and legal provisions were related to or would assist his case.

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.  In our judgment, nothing set out in the notice of motion and the written submissions can constitute viable ground of appeal as they did not pinpoint any error of law or raise any discernible or arguable ground for disturbing our judgment.  The applicant’s intended appeal is unarguable and bound to fail.

10.  For the reasons that we gave in our judgment of 11 September 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

11.  As the intended application has no prospect of success, we refuse to extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  Accordingly, we dismiss the notice of motion filed on 26 November 2020.