Re Md Himel as known as Muna Sarkar also known as Sahen

CACV 1/2018

[2021] HKCA 378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2018

(ON APPEAL FROM HCAL 218/2016)

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Before:  Hon Lam VP, Chu JA and Barma JA in Court

Date of Judgment:  25 March 2021

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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 17 May 2018, this court (Lam VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of A Wong J (“the judge”) on 28 December 2017 refusing leave to the applicant to apply for judicial review. The applicant had sought to review 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.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion dated 26 August 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“Dear Sir/Madam,

I would like to inform you that and also the court, there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favour on reject my claim.

The Honourable Justice did not address the issue in the submission and I therefore verily believe that the Hon. Justice have not consider my appeal thoroughly.”

4.In the affirmation dated 26 August 2020, the applicant deposed that:

“I seek to leave that did not receive my handing down judgment on time, if I received any letter or judgment in my home address then I must be appeal on time within 14 days.”

5.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 29 August 2020, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.Having considered the applicant’s Notice of Motion and affirmation, 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.

7.This application was made some two years out of time.  The applicant claims not to have received the judgment which was sent to the address for him in the court’s record.  He did not explain how and when he came to know of the judgment.  In these circumstances we are not prepared to accept that any good reason has been given to the delay. 

8.In any event the application is without merit.   

9.The matters stated by the applicant 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.  

10.The applicant contended that the court failed to consider his appeal thoroughly but he did not identify the issue that was omitted by the court. 

11.As for the ground based on the treatment of country of origin information (COI), we have already dealt with this issue at [15] - [17] of our judgment.  The applicant did not identify any error in that part of our judgment.

12.In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

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

14.For these reasons, the Notice of Motion dated 26 August 2020 is dismissed.

The applicant acting in person