Mamun v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 314/2021

[2022] HKCA 1345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 314 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2392 OF 2018)

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Before:  Hon Kwan VP and Chow JA in Court

Date of Written Submission:  20 May 2022

Date of Judgment:  16 September 2022

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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 Chow JA) handed down on 3 March 2022 ([2022] HKCA 323). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 16 July 2020 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim[1].

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 6 May 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 20 May 2022. Having considered his written submissions and 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 entered Hong Kong illegally on 25 November 2013 and was arrested by the police on the same day. He lodged a non-refoulement claim on 27 November 2013. His claim was made on the basis that he will be harmed or killed by people connected with the Awami League because the applicant was an office-holder in the student wing of the Bangladesh Nationalist Party and because of some money disputes.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 2 August 2021[2].

5.On 3 August 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 3 March 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.In the Notice of Motion filed on 6 May 2022, the applicant stated the following grounds of appeal:

(1)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration (“the Director”).

(2)  The judge was wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director in refusing his application for judicial review.

(3)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim.

(4)  The actual situation is different from the COI. The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(5)  The judge did not apply the law properly and there is procedural unfairness.

(6)  The applicant’s life is in danger in his country. He will be killed or harmed if he returns.

7.The applicant’s further contentions in his written submissions may be summarised as follows:

(1)  The adjudicator failed to carry out sufficient research and inquiry into the COI and failed to have regard to relevant and up-to-date COI in support of the applicant’s claim.

(2)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(3)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

8.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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (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 court registry was temporarily closed for public health reasons during the general adjournment period between 7 March 2022 and 11 April 2022. Since 12 April 2022, the court registry has resumed operation. Pursuant to Section 71(1A)(a) of the Interpretation and General Clauses Ordinance (Cap 1), if the act is allowed to be done within a period of time, and the last day of the period is a closure day for the office, the period includes the next following day, not being a closure day for the office. In this situation, the deadline for filing the Notice of Motion should fall on 12 April 2022 when the court registry reopened. The applicant was late for 24 days in filing his Notice of Motion. He explained in his affirmation he was late because he was unaware of the rules regarding the time limit and was unrepresented. These are not good grounds to justify his delay.

11.In any event, the applicant’s grounds and submissions in the present application are just bare assertions without particulars or evidence in support. He failed to identify any particular mistakes and/or procedural unfairness in the Court of Appeal’s decision. Moreover, 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 6 May 2022.

The Applicant, acting in person