Re Moshsin Ali

CACV 54/2018

[2018] HKCA 907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2018

(ON APPEAL FROM HCAL 400/2017)

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Before: Hon Lam VP, McWalters JA and Poon JA

Date of Judgment: 30 November 2018

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JUDGMENT

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Hon McWalters JA (giving the Judgment of the Court):

1.On 24 August 2018, this court (Lam VP and McWalters JA) handed down a judgment ([2018] HKCA 549) refusing the applicant leave to appeal against the deputy judge (“the judge”)’s decision refusing him an extension of time to apply for leave to apply for judicial review.

2.From that judgment, the applicant now seeks leave to appeal to the Court of Final Appeal. 

3.In his notice of motion dated 31 August 2018, the applicant set out the following grounds:

“- The Judgment from the Court of Appeal dated 24/8/2018 is not fair and reasonable.

- The Judges failed to find out the reality of the current dangerous situation of Bangladesh.

- The Judges also failed to find out the lack of credibility of the duty lawyers service. There is no help from the DLS during the appeal and also no time given for the evidence.

- Rest of the grounds will be submitted as soon as possible.”

4.In his affirmation dated 31 August 2018, the applicant set out the following grounds for his application:

“(1) The Honorable Judges from the Court were wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honorable Judges from the Court also failed to find out the clear details of the current situation of Bangladesh.”

5.In Exhibit A to the said affirmation, the applicant also raised the following grounds:

(a) the Adjudicator misdirected himself that the applicant needed to have experienced torture in the past to establish substantial grounds for being subjected to torture in future;

(b) the Adjudicator failed to carry out sufficient inquiry into the Country of Origin Information (“COI”) and to have regard to up to date research on the conditions in Bangladesh;

(c) the Adjudicator failed to take into account relevant COI materials, and cherry-picked and took into account COI materials that were of little or no relevance thereby leading him to make a decision that was Wednesbury unreasonable;

(d) the Adjudicator failed to evaluate and to make a finding as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights;

(e) the Adjudicator failed to assess whether state protection existed in Bangladesh under the extended concept of state acquiescence;

(f) the Adjudicator took into account and placed weight on considerations which were irrelevant, incorrect, inaccurate, and of no factual basis thereby leading him to make an unreasonable decision;

(g) the Adjudicator failed to call for psychological and psychiatric evaluations and reports;

(h) the Adjudicator applied the wrong standard of proof; and

(i) the applicant received insufficient legal representation from his assigned duty lawyer.

6.Notwithstanding the expiry of the deadline prescribed by the directions of the Registrar of Civil Appeals, the applicant lodged his written submissions in support of the notice of motion on 12 October 2018.  In that document he submitted that high standards of fairness were required in the determination of a torture claim, that the Torture Claims Appeal Board failed to consider the substantive merits of the applicant’s claim and failed to have regard to conditions in the applicant’s country of origin, and that the decision maker had a common law duty to act fairly.

7.In accordance with the general practice stipulated under paragraph 3 of Practice Direction 2.1, we consider it appropriate to deal with and determine this application on the papers without an oral hearing.

8.In the present case, the judge refused to grant an extension of time for the applicant to apply for leave to bring a judicial review.  In the appeal from that decision, we refused to grant the applicant leave under section 14AA of the High Court Ordinance, Cap 4 for him to appeal the refusal of an extension of time.  Pursuant to section 14AB, our decision refusing leave to appeal is final.  The Court of Final Appeal ruled in Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240 that a similar provision in the District Court Ordinance, Cap 336 was constitutionally valid.

9.Nevertheless, in view of the importance of this litigation to the applicant we have given careful consideration to all of the matters to which the applicant has referred us in the notice of motion, the supporting affirmation, and the written submissions.  It is plain to us none of the grounds constitute valid grounds of appeal.  They are case specific without involving any questions of great general or public importance.  Nor can we discern any other reason that would justify granting leave on the “otherwise” limb.  We are not satisfied that the statutory criteria set out in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 are met.

10.For these reasons, the notice of motion dated 31 August 2018 is dismissed.

The applicant acting in person