M. A. Jalil v. Torture Claims Appeal Board

CAMP 136/2020

[2021] HKCA 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 136 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1223 OF 2018)

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Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 10 September 2021

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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 Chu JA) handed down on 28 April 2021 ([2021] HKCA 563). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 23 December 2019 ([2019] HKCFI 2590) refusing to grant 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 1 June 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 14 June 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said directions has expired, having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Bangladesh.  He last arrived in Hong Kong on 7 June 2006 as a visitor and subsequently overstayed.  He was arrested by the police on 28 September 2007.  He raised a torture claim on 3 October 2007 on the basis that if he returns to Bangladesh he will be harmed or killed by certain supporters of Awami League over some monetary dispute.

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 about three days.  It was refused by the judge on 28 July 2020 ([2020] HKCFI 1607). 

5.The applicant renewed his application to the Court of Appeal on 18 August 2020.  The application was dismissed by the Court of Appeal on 28 April 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.In the Notice of Motion filed on 31 May 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.”

Analysis and disposition

7.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  The Court of Appeal may extend the time for making the application under section 24(5).

8.Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.Section 22(1)(b) of the Ordinance 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.

10.The applicant was late for five days in filing his Notice of Motion.  He explained in his affirmation that he did not receive the judgment within the time stipulated for appeal.  Both the notice of handing down the judgment and the judgment of the Court of Appeal were sent by post in April 2021 to the applicant’s address, which was provided to the court in the notice of change of address for service filed by the applicant on 23 November 2020.  They were returned to the court by the post office.  It is noted that the applicant’s address stated in his present application is different from the address stated in his notice of change of address for service, but he has not filed another notice of change of address informing the court of his change of address. Therefore, his explanation cannot justify his delay in filing the Notice of Motion.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

11.In any event, the applicant’s grounds are just bare assertions without particulars, elaboration and evidence in support.  He does not have any reasonably arguable basis to show that the Court of Appeal was wrong in dismissing his application.  He has failed to identify 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).

12.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 31 May 2021.

The Applicant, acting in person