Haldar Alom v. Torture Claims Appeal Board

CACV 305 /2020

[2021] HKCA 1559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 305 OF 2020

(ON APPEAL FROM HCAL NO 1339 OF 2018)

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Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Judgment: 29 October 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, Cheung JA and Au JA) handed down on 4 June 2021 ([2021] HKCA 783) refusing to grant relief from the sanction for failing to comply with an unless order.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 30 June 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 14 July 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 has not lodged any written submission as directed.  As the time for compliance with the said directions has expired, and, having considered the papers, we found it to be appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Bangladesh.  He raised a non‑refoulement claim on 12 December 2014 on the basis that if he returns to Bangladesh he will be harmed or killed by the supporters of the rival political party Awami League for refusing to join their party.

4.His non-refoulement claim was dismissed by the Director of Immigration on 16 February 2017.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 28 June 2018. 

5.He filed a Form 86 on 10 July 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by DHCJ Bruno Chan on 13 July 2020 ([2020] HKCFI 230).

6.On 27 July 2020, the applicant filed a notice of appeal against the judge’s decision.  His appeal was dismissed on 16 March 2021 for failure to comply with the unless order to lodge his appeal bundles (“Unless Order”).

7.The applicant filed a summons to apply for relief from sanction for failing to observe the Unless Order on 8 April 2021.  His application was dismissed by the Court of Appeal on 4 June 2021.  The applicant filed a Notice of Motion^[1] on 30 June 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

8.The applicant stated the following as his grounds of appeal in the Notice of Motion:

“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

9.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. 

10.In the supporting affirmation, the applicant stated that he seeks leave to file the Notice of Motion out of time as he did not receive the judgment within the time stipulated for appeal.  There is actually no issue of delay in the present application as his Notice of Motion was filed within the time stipulated under section 24(2) of the Hong Kong Court of Final Appeal Ordinance.

11.The applicant’s grounds of appeal stated in his Notice of Motion are just bare assertions without particulars or evidence in support.  He does not have any reasonably arguable ground to show that the Court of Appeal was wrong in refusing to grant relief from the sanction for failing to comply with the Unless Order.

12.Furthermore, 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).

13.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 30 June 2021.

The Applicant (Appellant), acting in person